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March 8, 2023

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Can homeowners in HOA communities consume marijuana?

Does the association have any means of limiting marijuana smoking?

Let’s look at the situation more closely below.

In HOA Communities, Can Boards Regulate Marijuana?

The use of marijuana in particular has recently gained popularity among homeowner organizations. However, many states have already made its usage for recreational or therapeutic purposes legal, despite the fact that it is still prohibited by federal law (or both). As of the time of this posting, marijuana is already legal in 21 states, including New York, California, Arizona, and Nevada. The question of whether HOA-run communities can control marijuana use has arisen as a result of the legalization of the drug in several jurisdictions.

Associations may desire to limit marijuana use for a number of reasons. The first is passive smoking. Most people are now aware of the dangers secondhand smoke poses to their health. Experts are concerned about the potential effects of secondhand marijuana smoke on human health, particularly lung health, despite the lack of a conclusive relationship at this time.

The smell is the second factor. The smell of marijuana smoke is really overpowering and not everyone enjoys it. Smoke can spread, so it doesn’t take much for neighbors to smell it, especially if they are close by.

The last justification is that it poses a fire risk. Whether it’s tobacco or marijuana, smoking has some risks for the environment. Property can become stained or discolored by the smoke, and a lit cigarette or blunt can start a fire. Also, it is common knowledge in HOA neighborhoods that allowing smoking results in higher fire insurance costs.

If the HOA already prohibits smoking, a separate marijuana policy is probably not necessary.

Its smoking regulations would also apply to marijuana use. It is nonetheless advisable to double-check that smoking marijuana is included in your smoking policy’s definition.

Relevant Policies for Smoking Marijuana in The HOA Area

State regulations may already prohibit the use of marijuana in public places. For instance, the Clean Indoor Air Act of Colorado forbids smoking in some indoor spaces, but not in indoor dwellings. The common areas in HOA communities may be subject to this Act. Similar regulations have been passed by other states to limit exposure to secondhand smoke.

Because an HOA owns its common areas, which are often accessible to all members, it is possible for HOAs to ban marijuana use in those places. Nonetheless, it is crucial to confirm that this power is recognized by state law or the association’s bylaws.

If the governing documents forbid the HOA from enforcing smoking restrictions, it may be time to explore revising them. Yet, many associations would need to receive consent from more than half of the membership. Yet if the majority of members support banning marijuana smoke in public spaces, getting this vote through should not be an issue.

What about private spaces, though? Can a homeowners’ association forbid a resident from using marijuana at home? The hard part comes at this point. In general, an association cannot restrict what homeowners can do privately (apart from illicit activities). Condominiums present an even greater challenge because smoke can spread between apartments and owners share walls.

Terminalizing Smoking and Taking Preventive Measures

There is a delicate line here, but an association may be able to control smoking in private areas under its laws about nuisances.

What exactly is a nuisance? And at what point does marijuana smoking bother a neighbor? Is it the smoke getting into the adjoining apartment or the thought of someone smoking pot?

The association will typically define nuisance differently. Nonetheless, it can be worthwhile to remedy the issue first before moving on to a nuisance violation, especially for condominiums.

If the complaint is about smoke leaking between units, for instance, an HOA can think about adding better screens or seals to stop the leakage. Owners can occasionally settle disagreements without the assistance of the HOA. It’s crucial to keep in mind, though, that residents have sued HOAs for failing to enforce smoking restrictions.

It is advised to take these remedial measures prior to outlawing marijuana usage in private spaces since they could show that the HOA is making an effort to address the issues at hand. It may demonstrate that the organization did not establish its smoking policies at random.

An HOA should also compile all the complaints it gets regarding marijuana use. Describe the complaints in detail, including the names of the people involved, the time and date of the complaint, and the problems raised. Maintaining thorough records of these complaints can aid the association’s efforts to impose a smoking ban and even act as proof in the event that a homeowner decides to file a lawsuit.

HOA Communities’ Use of Medical Marijuana

It is no secret that cannabis has aided numerous sufferers of chronic pain. Medicinal marijuana has been used to treat particular symptoms in people with epilepsy, AIDS, cancer, and multiple sclerosis. The same fundamental idea is true when it comes to medical marijuana.

Homeowners associations have the authority to prohibit the use of medical marijuana in public places. Some would insist on being given special permission to consume medical marijuana in public spaces under the Fair Housing Act. The federal government still forbids the use of marijuana, and smoking is not a protected class.

As a result, an HOA might not be required to make this situation reasonably accessible.

Associations should exercise caution when policing the use of medical marijuana in private residences, though. After all, a lot of patients require medical marijuana in order to lead active lives. It is important to get legal counsel if a neighbor complains and calls it a nuisance in order to limit culpability on both sides.

Final Verdict

In HOA communities, associations have the authority to prohibit the use of marijuana in public or communal places, but not always in private locations. It may be covered by the HOA’s laws on smoking or nuisances, however, the latter can create some challenging circumstances. Yet it’s vital to remember that these laws might differ from one state to the next, particularly if that state has already made it legal to smoke marijuana.