Can Condos and HOAs Ban Marijuana?

Before opening a firm in Southern California, I was an HOA attorney in Oregon and Washington when those states legalized recreational use of marijuana. During that time, I counseled dozens of condominium and homeowner associations navigate the controversial issues surrounding the inflammatory substance. Now that California has joined the ranks of legalized cannabis, I expect common interest developments (“CID”) throughout the Golden State to struggle with this issue until the smoke dissipates.

Prior to January 1, 2018, a CID in California could ban marijuana use within its property (other than for medical use for residents or guests who had a Medical Marijuana Identification Card) based solely on the illegal nature of the activity. Most CID Declarations or CC&Rs do not expressly prohibit specific crimes, but rather, rely upon “catch-all” phrases such as no “illegal” or “criminal” activity permitted. Or associations utilize a “misconduct” provision as a means of banning unlawful conduct. Now that recreational marijuana use is legal for adults in California, CIDs can no longer rely on the illicit activity grounds to ban or restrict its use.

CIDs, however, can limit or restrict legal activities. Playing music, smoking nicotine and having parties are all legal and perfectly acceptable activities when conducted reasonably. But each activity can be regulated and restricted within a CID when the conduct adversely effects residents or guests. The same is true for marijuana.

Here are some basic guidelines for how CIDs may wish to address marijuana use within their associations:

  1. Marijuana should be treated the exact same way as cigarettes and other nicotine products. CIDs should draft rules regarding all-encompassing “smoking or vaping activities.” The rules should define such activities to include: “nicotine, tobacco, vaping, marijuana or other lighted or electronic devices that deliver the substances.”
  2. The rules should include a statement that such activities emit second-hand smoke or vapors that that contain carcinogens, THC or other toxins proven by governmental agencies to cause adverse health risks to persons, including “passive smokers” who come in contact with the emissions.
  3. There should be no controversy for CIDs banning marijuana use (including edibles) within the Common Areas of associations. Controversy may arise in Exclusive Use Common Areas (e.g., decks or patios) and within the homes or condo units themselves. For these areas, I have found CIDs should address the adverse effects of the conduct, and not focus on the activity itself. For instance, CIDs do not regulate “practicing drums,” “playing jazz music,” or “cooking with curry,” they restrict “loud or offensive music or sounds” or “noxious” or “offensive” conduct. Thus, CIDs may choose not to restrict “marijuana” or even “cigarettes” within Units or patios; instead, restrict “activities which create second-hand smoke or vapors that include carcinogens, THC, or other toxins proven by governmental agencies to increase health risks to persons.”

To minimize controversy and impingement on rights of owners and guests within condominium and HOA associations, CIDs in California should focus not on limiting “marijuana” or “cigarette” or “vaping” activities within homes and condominium units (and Exclusive Use Common Areas), but on the “offensive” or “noxious” or “nuisance” effect of the activity upon other residents and owners.

If you are an owner who is being unfairly restricted in your use of marijuana within your condominium or homeowner association, contact qualified legal counsel to help defend your rights.