April 20, 2016 in Real Estate

In more than 20 U.S. states, it’s legal to grow, sell, possess or use marijuana to varying degrees and for various purposes, although federal law still classifies weed as an illegal drug.

Given that contradiction, you might wonder what rules apply if you live in a condominium or community governed by a homeowners association, or HOA.

The answer isn’t, shall we say, cut and dried.

Consider Colorado, which attorney Suzanne Leff says is “kind of at the frontier on these issues.” Leff is a partner at Winzenburg, Leff, Purvis & Payne, a Littleton, Colorado, law firm that represents homeowners associations.

Homebuyers might want to do some homework before they buy a home in a community that’s governed by an HOA.

Even within this marijuana-friendly state, “each association has to decide on the approach to take based on what the documents allow, what’s feasible and what the community’s needs are,” Leff says. Even then, she adds, “there are a variety of approaches taken.”

Enforcement of rules

Some associations try to put rules on pot use only in common areas. Others attempt to address common areas and individual units. Still others make no effort to address the issue anywhere at all.

“For a lot of associations, the easy place to start is the common-element uses,” Leff explains. “But I also know communities that say, ‘We don’t want to get into that.'”

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One concern for HOAs is whether rules are even enforceable, since someone would have to step up to police marijuana use in the regulated areas.

Some communities put rules on their books just to try to prevent discord, even though they know enforcement might prove difficult.

As Leff says, “It’s an issue.”

The nuisance question

Marijuana smoke can waft from one residence to another through the open outdoor air or an interior ventilation system.

Whether that smoke constitutes a nuisance is also an “it depends” question, says David Swedelson, senior partner at SwedelsonGottlieb, a Los Angeles-based law firm that represents community associations.

“If they’re occasionally smelling marijuana, I’d say there’s no case,” he says. “But if it’s all the time — I went to a building recently where people were complaining about this, and as soon as I walked into the courtyard, I smelled marijuana. It’s a matter of degree.”

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A hazy definition

Most community association documents prohibit nuisances. Whether that means an HOA can ban all types of smoking as a nuisance isn’t any more clear-cut than what a nuisance is.

“A lot of communities say the nuisance provision in their recorded covenants gives them the authority to prohibit any smoking within the units,” Leff says. “Then we have to have a conversation about whether a court would agree that an HOA can prohibit a use within the unit when it’s not proven to be a nuisance and it’s not a nuisance in every case.”

Reasonable accommodation

State-level fair housing laws that require reasonable accommodations for people who have disabilities can add another twist to how HOAs deal with marijuana.

Fair housing laws don’t guarantee that allowances can be made for marijuana users, even if they rely on medical-use cards or claims.

Rather, Leff says, HOAs should consider requests from medical-marijuana users the same way they’d evaluate similar requests from disabled residents, and determine whether the accommodation is both warranted and reasonable.

An accommodation might not be considered reasonable if it creates a nuisance.

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Yes, we’re back to nuisances

“Saying someone can smoke medical marijuana and create a nuisance for someone else is like saying someone can have a Seeing Eye dog, but it barks all night,” Swedelson says.

Leff offers another example: “Maybe all of the water is metered through the building as a whole. If someone were to request an accommodation to be able to grow (a lot of) plants, it might not be a reasonable accommodation because it stands to have more of an impact on the rest of the community.”

One option for pot smokers whose neighbors aren’t sympathetic to their habits could be products that generate little or no secondhand smoke, says Taylor West, deputy director of the National Cannabis Industry Association in Denver.

“A lot of products don’t have much odor, such as edibles and vaporizers that don’t burn the cannabis but just heat it,” West says. “What you exhale from that dissipates almost immediately.”

Ask — or not

Homebuyers might want to do some homework before they buy a home in a community that’s governed by an HOA.

Leff, the lawyer in Colorado, advises buyers to read the homeowners association documents and look for provisions related to marijuana or smoking and to ask how odors travel through the property and whether the HOA has had any discussions about marijuana use or cultivation.

Attorney Swedelson says buyers should read the last 6 months’ worth of minutes from association meetings to get a sense of the HOA’s personality and what subjects might be under discussion. Buyers also can ask whether residents have complained about any nuisances on the property.

West, with the National Cannabis Industry Association, suggests buyers who plan to use marijuana might want to think twice before they make specific inquiries about an HOA’s rules.

“If there aren’t any rules and you ask, it might cause them to suddenly think about whether they want to put in rules,” West says. “It might be a situation where it’s better not to raise it.”

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