Q: Can HOAs ban Marijuana?

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Q: Can HOAs ban Marijuana?

Q: Can HOAs ban Marijuana?

answer-icon-masterWhat’s The Deal, Maaaaaaaan?Can HOAs ban Marijuana?

The federal law hasn’t changed, and it’s very clear: Marijuana is still listed as a Schedule I controlled substance under federal law. 

But state laws are starting to shift. Colorado and Washington have already legalized the recreational use of marijuana, subject to certain restrictions.

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Medical marijuana fell short in Florida this year, but it went through in Alaska, Oregon and the District of Columbia with the 2014 midterm elections, bringing the number of states that allow some form of legal consumption of marijuana to 17, or 18 counting D.C. (D.C.’s measure could be overturned, since it’s a federal district, rather than a state, and the measure is subject to a 60-day Congressional review period. 

Meanwhile, HOA boards, condo boards, coops and landlords are all trying to figure out how the evolving marijuana law landscape may affect them. 

Can HOAs ban Marijuana? 

Clearly it’s no problem to prohibit marijuana use or possession in a state where marijuana is illegal in all circumstances. But the patchwork of laws and exceptions is already starting to create headaches for boards trying to draw up their policies, covenants and restrictions – and it’s creating billable hours for attorneys trying to figure it out. Indeed, a whole new legal marijuana law specialty is emerging. 

Some of the questions boards and residents alike are wrestling with right now:

  • Can HOAs prohibit recreational use of marijuana in tenants and owners’ homes?
  • Can HOAs prohibit medicinal marijuana?
  • What about in common areas?
  • Under what circumstances can even legal marijuana use become a nuisance to other residents?
  • Can HOAs ban growing/cultivating or processing marijuana on the premises?

Here’s the deal: It’s still pretty early in the game, and case law on the subject is still developing. However, we do have some early indications, and some existing precedents that can give us some clues as to what may and may not be permissible. 

The Federal Fair Housing Act

Contrary to popular belief, the Americans With Disabilities Act does not apply directly to private residential housing. The applicable federal law is the Fair Housing Act – which, if anything, is even more accommodative to the handicapped and those with medical conditions than the ADA. For example, the Department of Housing and Urban Development (HUD) has a broader definition of disability than the Justice Department brings to the ADA when it comes to protecting service animal owners against discrimination on the basis of that disability. 

If state law provides for legal medical marijuana, and the individual holds a prescription or state-issued permit, it is likely that HOAs will generally be prohibited from enforcing a ban on marijuana, unless that use becomes a nuisance to other owners or residents. 

The marijuana user’s case would be weaker – and the HOA’s much stronger – if the HOA moved to ban medicinal use in common areas. But we haven’t seen much in the way of legal proceedings on record yet to see how courts will treat that. 

Recreational Marijuana Use

In the case of recreational marijuana use, there’s no issue involving discrimination against the handicapped, so HOAs will likely have the ability to restrict marijuana use under the same kinds of rules they use to address smoking. 

Condo and HOA associations have a long-established right to restrict smoking in common areas.

Their authority is sharply attenuated when it comes to restricting smoking within residents’ homes themselves. In a recent case in Virginia, some neighbors in a co-op association claimed a fellow residents’ cigarette smoking was a nuisance, and sought to force their association to enforce anti-nuisance rules against the smoker. The courts, however, declined to rule that second-hand smoke was a nuisance under the law, and kicked it over to the legislature

Boards can likely ban marijuana use in common elements, as well as limited common elements, such as porches and lanais, where the smoke will easily and predictably wafted into common areas frequently used by other residents and guests. 

This was in a complex that did not have a covenant or bylaw in place that completely banned smoking. Is such a prohibition possible? 

It turns out there is. Condominium associations can prohibit smoking – anything – in units, provided they spell out the restriction at the bylaw level – or better yet, the declaration itself. 

In my view, and probably in the view of most, HOAs have the authority,” said Jeremy Orten, a spokesperson for the Colorado Community Associations Institute, in an interview with the Denver Westward. “The constitutional amendments, Amendment 64 and Amendment 20,” a 2000 measure that legalized medical marijuana in Colorado, “apply principally to government. It doesn’t apply to private rights, and essentially, HOAs are private communities.”

Colorado’s Amendment 64 also expressly provided that nothing in the Amendment would prohibit any entity controlling property from “prohibiting or otherwise regulating possession, consumption, use, display, transfer, distribution, sale, transportation or growing of marijuana on that property.”

This might be tough, because it would require a supermajority of voters, in most instances, and lots of people smoke, while lots of others who don’t smoke are willing to fight petty HOA battles to the death to protect your right to smoke. 

Pro-marijuana groups in the key states, meanwhile, are well-financed and vigilant. You can expect a vigorous campaign to oppose any proposed restrictions on marijuana use by any prominent HOA or community association. So any development seeking to make a change could have an uphill battle, when it comes to finding the 2/3rds or 3/4ths supermajority required to change the bylaws. 

My recommendation: Go with the flow. Install a marijuana vending machine in the lobby. Boost ROI by installing snack machines right next to them. Use the proceeds to offset assessments and any damage marijuana use may cause. Win-win! 

Author Bio Writing about personal finance and investments since 1999, started as a reporter with Mutual Funds Magazine and served as editor of Investors’ Digest. He now publishes feature articles in many publications including Annuity Selling Guide, Bankrate.com, and more. Author Bio for Jason Van Steenwyk

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