What HOAs Need to Know: Medical and Recreational Cannabis

As more states across the U.S. decriminalize the growing and use of medical and recreational cannabis, community associations must confront a variety of issues.

Twenty states and Washington D.C., have legalized the personal use of cannabis.

In addition, 18 more states permit medical use. Each year, the number of states where cannabis use is legal increases. Consequently, cannabis-related issues are becoming more common in community associations.

The use of cannabis can affect community associations in various ways, such as:

■ Do current smoking regulations cover the use of cannabis on association property or in individual units?

■ How will the association handle nuisance claims related to smoke and odor?

■ How will the association handle reasonable accommodation requests for medical marijuana usage under the Fair Housing Act?

Know the Rules

When a new right is legalized by a change in state law, homeowners may mistakenly believe they can engage in the activity despite restrictions imposed by the association. However, community associations can regulate or prohibit an activity that would be permissible outside of the association. In most states, community associations can restrict or prohibit cannabis use within the community despite the fact it has been made legal under state law.

If an association already has smoking regulations in place, the regulations should be reviewed to ensure they are broad enough to include cannabis. Regulations too narrowly drafted might need to be amended to ensure they can control the use of cannabis in the association. Even if a rule broadly prohibits all smoking, it may be best to amend it to explicitly ban or regulate the use of cannabis so there is no misunderstanding.

Community associations that do not have rules or regulations in place to regulate cannabis usage may still be able to address complaints under nuisance or quiet enjoyment provisions in governing documents. Community associations have successfully pursued nuisance claims against occupants relating to cigarette or cigar smoke. Some state cannabis statutes explicitly identify cannabis smoke as a nuisance, which will make pursuing such a claim much easier.

Address the Issue

To avoid liability, associations must ensure that complaints from occupants related to cannabis odor are not ignored. Some state laws contain express provisions that allow residents to pursue a claim for damages for not taking appropriate action on a complaint. It can be very difficult to make all residents happy. It can be even harder to determine the actual source of the nuisance. To avoid liability, associations must ensure that complaints from occupants related to cannabis odor are not ignored.

As associations attempt to restrict or prohibit cannabis usage, requests for reasonable accommodations or exemptions under the Fair Housing Act (FHA) will likely increase. While an association might prohibit or severely regulate smoking cannabis in common areas or units, an individual who has a medical need for cannabis use may be eligible for an exemption. When confronted with such a request, the association should work with its legal counsel to ensure compliance with FHA and similar state laws. Violations of these laws can impose significant liability on an association.

Managers and board members should consult with their association attorney before making any changes to governing documents or attempting to enforce existing rules.