The Weedman Cometh to an Association Near You

Monday, January 13, 2014 | Community Associations Miscellaneous

January 1, 2014 has come and gone with initial reports estimating sales at over one million dollars in marijuana for the first day.  Commencing early in the morning, lines began to form and wrap around marijuana retail outlets.

Going hand in hand with the high (pun intended) sales figures, law enforcement officials from neighboring states have warned that marijuana is still illegal in Wyoming, Utah, Kansas, and every other state in the Union with exception of Washington and that marijuana is still not legal to smoke in public.  This leads to questions such as while it is legal, where is it all going to be consumed?  Most of the marijuana purchased will be taken home and used in the private residences of the purchasers.  With the large influx of a previously illegal substance that has a very distinctive smell, Associations are questioning what they can do to balance the rights of owners to use the newly legal substance with the rights of those owners that do not want to partake, but also do not want the smell permeating their own unit.

In responding to the questions being asked, depending upon the area in question, some answers are easy whereas others not so much.  Starting with the easy answers, in most cases, the Association, through the Board of Directors, has the authority, without further owner approval, to regulate the use of the Common Elements.  This includes, to some extent, the limited common elements.  This means, the Association can adopt uniform rules regulating the smoking of marijuana in parking lots and landscaped areas owned by the Association.  The Association may also regulate the smoking of marijuana on common element balconies and decks which are owned by the Association or are not otherwise part of the individual units.  This authority, along with the provisions of the Colorado Clean Air Act which prohibits any smoking in indoor hallways, stair cases and elevators, the only place left for a marijuana user to enjoy their recently purchased weed, is in their units.

Absent a specific amendment to the Association’s Declaration to prohibit smoking of marijuana within a Unit, the Association has very limited right or ability to regulate the consumption of a legal product on or in the private property of an owner.  Courts have been very reluctant to permit an Association to regulate legal behavior in a unit without specific authority in the Association’s Declaration.  This includes use of the Association’s existing nuisance provision, while this provision would seem to permit the Association to regulate a nuisance odor emanating from one unit from entering into another unit.  However, the adage one person’s nuisance is another person’s treasure applies.  Just because the smell may annoy one owner, as the conduct is legal, without more than a mere annoyance, courts have refrained from extending the force of law to curb the legal behavior.

As this new world continues to unfold, Associations, Owners, Board Members, Property Owners as well as the courts will find their way through the haze of smoke over the Rockies.

Comments

What, if anything, can be included in bylaws or declarations against cultivating marijuana within a subdivision? Even inside a home, the growing of the stuff presents an exposure to criminal elements by bringing undesirables into the neighborhood to procure the weed, either legally or illegally.

My first question is "What does 'public' mean?" For the purposes of the law, are outside common areas considered "public?" Most law-enforcement agencies consider commonly-owned property of an association to be private for most intents and purposes. Would this mean that, absent a new rule, the owners could toke up in the common area? This could be important, because I suspect many associations will adopt the policy that marijuana use within the community will be in accordance with state law, and not otherwise regulated by the association. If the board wants to prohibit use outdoors on commonly-owned grounds, then I guess it should adopt a specific rule to that effect. I'm sure there are no declarations to date that deal with the use of marijuana (Why would there be?), but from Jan. 1 of this year forward, I'm sure it will become the topic of a covenant, one way or the other. I personally couldn't care less who uses any drug anywhere, so long as that person is not affecting the health and safety of any-other person. But I understand there are those who would not tolerate the use of pot, even in the privacy of one's own home, let alone in a common area. So yes, these are the needs and rights that need to be balanced. Marijuana smoke is worse than cigarette smoke in how it is absorbed into surfaces and lingers. So those who use it in their units are likely going to find it difficult to sell them when the time comes. This may end up affecting the values of other units in the complex. And the odor could certainly waft into other units. As a manager, I have always dealt with any type of smoke or odor as a trespass, to be dealt with only if it invades the space of another, and a complaint is received. In this sense, I guess I echo the trend of the courts--to regulate only when absolutely necessary. But I have often found that the emanation can be stopped by sealing penetrations and openings through which smoke or odor might transfer. (This, of course, would not apply if there are common HVAC ducts.) I once managed a commercial building which had as a tenant a nail salon. Just try to stop or eliminate the smell of methacrylate, and you will see what a real problem the transfer of odors can become! And that chemical is known to cause health issues in susceptible individuals, even though those who work with it seem to have no obvious effects--Yet! OSHA allows what I consider to be a high level of the chemical in the air, but that allowable limit is too much for many. It did become a real issue, to the point that I advised the building owner not to allow manicurists in the future, once the existing tenant vacates. That is what happened, and was the only permanent solution.

I am not a proponent or detractor for the new legalization but I do have a question. Why is it that you feel that the successful enforcement of a smoke nuisance for cigarette smoke would not be equally enforceable for marijuana? Cigarettes or other tobacco products have always been legal and we have all successfully enforced an odor nuisance for that sort of smoke. Why would marijuana be different?

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