For some condominium and homeowner associations, marijuana (smoking and growing) is becoming a concern. There are a handful of tools the board of directors may consider to handle these issues.
1. Nuisance
A nuisance claim is most frequently used in banning smoking in multi-family residential units. A “nuisance” is defined as conduct that causes a substantial and unreasonable interference with the use and enjoyment of the premises.
In Christiansen v. Heritage Hills 1 Condominium Owners Association, a Colorado District Court held that second-hand cigarette smoke qualifies as a nuisance. The Court also noted that smoking is not a right protected by the Constitution.
Although the courts in Oregon and Washington are not required to follow the holding in this case, the courts do still have discretion to follow the holding. Both the smoking of cigarettes and the smoking of marijuana emit harmful chemicals that can cause serious health complications. In fact, marijuana smoke has joined tobacco smoke on a list of substances that, in California, regulators say cause cancer. It is harmful to anyone’s use and enjoyment of their property to be involuntarily exposed to dangerous chemicals that can seriously damage their health. The Board can point to the fact that marijuana can be ingested instead of smoked, which eliminates the dangerous exposure to other people.
In banning the growing and cultivation of marijuana the Board may rely on a nuisance claim. The growing of marijuana often emits a noxious odor that can travel from unit to unit. Additionally, the use of chemicals and lighting for growing could be a fire hazard. The water and lighting required for growing could also constitute extra use of “common utilities.” That kind of use could be costly and unfair to the other residents. A community would likely be within its rights to ban growing and cultivation of marijuana.
2. Insurance Issues
In addition to the issues presented above, there is the issue of insurance liabilities. Fires caused by smoking marijuana or growing it may not be covered by the insurance company.
3. Amendments and Rules
There are a couple different options a Board can use to control smoking and growing. The first is to amend the CC&Rs. The other option is to implement a new Rule and Regulation.
The advantage of amending the CC&Rs is that this method provides constructive or record notice to prospective purchasers—i.e. because the amendment is recorded in the county records, owners and perspective buyers are presumed to have notice.
Additionally, CC&R amendments generally have stronger enforceability. However, the disadvantage is that it requires membership vote which means it could take longer and it is more expensive. Some state courts have actually held that the only way a board can implement a no smoking ban is to amend the CC&Rs. Although there are disadvantages, this is the most reliable method of implementing the ban.
In the alternative, the Board may add a new Rule and Regulation. The advantage is that these are easier to adopt because they require only board approval and not membership vote. This also means it is less expensive. However, prospective purchasers will not have constructive notice of the ban and the enforceability will not be as strong as an amendment to the CC&Rs.