CAN BOARDS REGULATE MARIJUANA IN HOA COMMUNITIES?
Marijuana, specifically the use of marijuana, has recently become a hot topic among homeowners associations. And while it remains illegal under federal law, many states have already legalized its use for recreational or medicinal purposes (or both). As of writing, a total of 21 states have already legalized marijuana in some capacity, including California, Arizona, Nevada, and Colorado. With the legalization of marijuana in many places, HOA-run communities are now asking whether or not they can regulate its use.
There are several reasons why associations may want to restrict the use of marijuana. The first is secondhand smoke. By now, most people know about the health hazards of secondhand cigarette smoke. And although no definitive link exists yet, experts are concerned about the impact secondhand marijuana smoke might have on human health, particularly lung health.
The second reason is the odor. Marijuana smoke gives off a very pungent stench that not everyone is used to or likes. Because smoke can travel, it does not take much for neighbors to smell it, especially in close quarters.
The final reason is that it is a fire hazard. Smoking, whether marijuana or tobacco, poses certain dangers to property. The smoke can stain or discolor property, and a lit cigarette or blunt can cause a fire. And it is well-known among HOA communities that fire insurance premiums increase when an association allows smoking.
If the HOA already has existing smoking restrictions, it will likely not need a separate marijuana policy. Its rules on smoking would apply to the use of marijuana as well. However, it is still best to review your smoking policy’s language to ensure that it covers smoking marijuana, too.
RULES ON SMOKING MARIJUANA IN HOA COMMUNITY
State laws may already address the smoking of marijuana in public settings. For example, Colorado’s Clean Indoor Air Act prohibits smoking in several indoor areas, though not in indoor homes. This Act can apply to HOA communities’ common areas. Other states have enacted similar laws to reduce exposure to secondhand smoke.
Homeowners associations can prohibit smoking pot in HOA common areas, and this is because an HOA owns its common areas, which are also usually open to all members. Still, ensuring this authority exists under state law or the association’s governing documents is essential.
It is time to consider amending if the governing documents don’t permit the HOA to enforce smoking rules. For many associations, though, that would mean getting approval from over half of the membership. But, if most members favor restricting marijuana smoke in common areas, securing this vote should not be a problem.
But what about private areas? Can an HOA prevent a resident from smoking marijuana in their own home? This is where it gets tricky. Generally, an association cannot tell homeowners what they can and can’t do privately (apart from illicit activities). It is even tougher for condominiums, where owners share walls and smoke can travel between units.
SMOKING AS A NUISANCE AND TAKING MITIGATING ACTION
An association might be able to regulate smoking in private areas under its nuisance policies, but there is also a fine line here. What constitutes a nuisance? And at what point does smoking marijuana become a nuisance to a neighbor? Is it when smoke reaches the neighboring unit, or just the idea of someone smoking marijuana that bothers them?
How nuisance is defined generally depends on the association. But, particularly for condominiums, it may be worth addressing the problem first before jumping straight to a nuisance violation.
For instance, if the complaint has to do with the smoke traveling between units, an HOA might consider installing better screens or seals to prevent travel. Sometimes, owners can resolve disputes without involving the HOA. However, it is important to remember that homeowners have taken HOAs to court over the latter’s failure to regulate smoking.
Taking such corrective actions before banning the smoking of marijuana in private areas is recommended because it could demonstrate the HOA’s effort to address the complaints first. It can show that the association did not arbitrarily enact smoking rules.
Additionally, an HOA should compile all the complaints it receives about smoking marijuana. List down details of the complaints, such as names of the parties involved, the date and time of the complaint, and the issues presented. Keeping detailed records of these complaints can also support the association’s effort to enact a smoking policy and even serve as evidence should a homeowner take legal action.
THE USE OF MEDICAL MARIJUANA IN HOA COMMUNITIES
It is no secret that marijuana has helped countless patients struggling with chronic pain. Medical marijuana has been used to treat specific symptoms of cancer patients, AIDS patients, multiple sclerosis patients, and people with epilepsy. When it comes to medical marijuana, the same principle generally applies.
Homeowners associations can prohibit the use of medical marijuana in public spaces. Some may claim to be an exception under the Fair Housing Act and demand that they be allowed to smoke medical marijuana in common areas. But, marijuana is still illegal under federal law, and being a smoker is not a protected class. As such, an HOA may not be on the hook to reasonably accommodate this situation.
However, associations should take caution when regulating medical marijuana use in private homes. After all, medical marijuana is something that many patients need to live an active life. If a neighbor complains and labels it a nuisance, it is best to seek the help of a lawyer to avoid liability on both ends.
THE BOTTOM LINE
When it comes to regulating the smoking of marijuana in HOA communities, associations can restrict the smoking of marijuana in public or common areas but not always in private spaces. It can fall under the HOA’s smoking or nuisance policies, though the latter can present some tricky situations. Nonetheless, it is important to note that these policies can vary from state to state, especially if the state has already legalized marijuana smoking.
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