Could condo association forbid cannabis smoking?
Q: I recently received a letter from my condo association about a proposed amendment to our condo declaration to ban cannabis smoking in our units. The letter states: “The Condominium Act states a condominium association may amend their governing documents to prohibit the smoking of cannabis within an owner’s unit though allowing the consumption of cannabis by other means. The Board of Directors has approved an amendment banning the smoking of cannabis in units. You are hereby notified that a meeting of the Unit Owners will take place for the purpose of considering the approval of the ban.”
This concerns me. Is this ban legal if using marijuana does not interfere with other residents? Is the association within its rights to tell us what we can or cannot do in our own property? Does this impinge on the rights of unit owners?
This seems to be a ban that is prejudicial toward cigarette smokers. Personally, I abhor getting into our elevator with someone who has just finished a cigarette, smelling cigarette smoke in the hallway, or having smoke enter my unit from above the ceiling, but I have to put up with it.
How can the board allow the banning of cannabis if cigarette, cigar and pipe smoking are allowed?
A: What you’re saying is, smoke is smoke, right? Well, some people definitely see it that way and others do not. We’ve seen more homeowners’ associations taking action to ban or limit smoking of all kinds. Some associations have banned all types of smoking.
The physical structures of buildings vary widely on how they handle smoke. Some have relatively airtight units, and when people smoke in them, the smoke doesn’t infiltrate hallways or other units. Other buildings and their filtration systems are just terrible when it comes to smells and smoke.
We’ve had readers complain that smoke has come into their unit from the one above. In other cases, the ventilation system carries the smoke from more distant units, and in still others, the smoke comes into neighboring units through the electrical outlets.
With all that in mind, some associations have passed rules to ban smoking within the entire building, including within all the owned units. You can say that the ban does impinge and interfere with the rights of unit owners, but most rules in condominium associations do just that. Some buildings have rules on when you can make deliveries, when you can hold parties, when you can move into and out of your unit, and even whether and what type of noise is too much. When it comes to pets, the rules can vary from prohibiting pets or limiting the number to limiting the type of pets you can have, the size of those pets and even the breed of dogs that are allowed.
Some associations also limit the number of unrelated individuals that can live in a condominium unit, while others might limit the number of full-time residents that can live in the unit. All these rules affect the ownership rights of homeowners. The question then becomes whether these rules go far beyond what is permissible under the condominium organizational documents or what is permissible under state law.
If your state passed a law that allows condominium boards to limit or prohibit cannabis smoking within units, then your homeowners’ association can put limits in place and enforce them through fines or other means. In some circles, the question would revolve around whether the rule was reasonable or not.
Some people might say it’s reasonable, given that the federal government still considers cannabis a prohibited substance while cigarettes are not.
We can understand your frustration with your condominium association, but when you elect the board members you are giving them quite a bit of authority to run the association and to make rules. Voting matters. Especially this close to home.
Board associations can make arbitrary decisions, and no board is perfect in handling all issues. The question is whether the rules are proper under the association governing documents and any applicable laws. If you wonder if the proposed rules are proper under the governing documents and your state’s law, do some research or hire an attorney whose principal practice is community association law. Otherwise, if your fellow homeowners share your strong feelings about the issue, you and they should work to elect a majority on the association board to represent those interests.