Can Condo Associations Ban Marijuana Use, Even Where Legal?
When condiminium and homeowners associations (HOA’s) around the country tell residents (homeowners and renters alike) to “Put that in your pipe and smoke it,” they most assuredly are not referring to marijuana, no matter what the new laws say.
A Brighton, Colorado homeowner found out the hard way when he tried growing hemp, a non-intoxicating derivative of marijuana, in his yard. Despite his attempt at educating his homeowner’s association on the facts about hemp and its dissimilarities to marijuana, the board still enforced an existing rule, reportedly commenting, “We’re not going to let anyone grow marijuana here.”
Banning the growth of marijuana or hemp is one thing, but others around the country aren’t so certain HOA’s have the right to tell people whether or not they can smoke marijuana in the privacy of their own homes, especially in states where marijuana use is legal. Despite the fact that HOA’s have been regulating every other aspect of homeownership from what colors owners can paint their houses to where they park their vehicles, attorneys around the country are uncertain whether this issue will fall in line with all the other HOA regulations.
Since the legalization of recreational marijuana in Colorado and Washington state, and the medical use in several other states (23 others as of this writing), residents may think they are free to use in the privacy of their own homes and communities. Not necessarily, according to attorney Bob Gaglione with the Gaglione Law Group. “"Homeowners associations can obviously enact restrictions banning illegal marijuana use or any other criminal conduct, but in jurisdictions where medical or recreational marijuana is legal, the answer is less clear." He added that in California where medical marijuana is legal, HOA’s can still limit marijuana use. “It’s especially true if the odors are not confined and disturb the quiet enjoyment of the use of the property by neighbors, thereby creating a nuisance.” Even so, consideration still has to be given to those citizens who now have the right to use marijuana recreationally and medically. Gaglione suggests “…HOAs must be mindful of both the need to make reasonable accommodations for qualified individuals and the right to regulate the community for the overall good of the citizens.”
Richard Thompson of Portland Oregon, and owner of a management consulting company specializing in condominiums and homeowner associations, disagrees. "The fact that people may be legally entitled to smoke doesn't mean they can do it wherever they want, any more than they could walk into a restaurant and light up a cigarette."
Still, professionals working with HOA’s and the new marijuana laws say it is mostly becoming a matter of regulating common areas. Inevitably there will be those residents who want to exercise their rights and those who want nothing to do with pot smoking, legal or otherwise.
This issue became clear when the Carrillo Ranch homeowner’s association in Chandler, Arizona withdrew a proposal to ban residents from smoking medical marijuana on their front and back porches. According to one resident there, “"This is a personal-freedom issue where people were going to dictate how other people should live."
A Boulder, Colorado attorney summed up the smokers' rights position with, “[HOA’s] can’t themselves impose something contradictory to state law. It’s legal privately. They wouldn’t survive legal challenges.”
What do you think? Should HOA’s have the final say over whether or not residents can use marijuana in their own homes where it is legal to do so? Have you run into this issue on your properties?