MARIJUANA IN CONDOMINIUMS: NUISANCE AND LEGAL CONSEQUENCES

Until recently, many co-owners were concerned about secondhand smoke issues relating to tobacco products in the condominium project and how to limit its impact and/or eliminate the smoke entirely.  However, attitudes regarding the acceptable use of marijuana are changing.  More co-owners are becoming concerned with marijuana use within their condominium project and considering whether reasonable restrictions are appropriate.

 

The Changing Marijuana Use Landscape

 

The legalization of marijuana across the United States has been slow but steady.   There are now 23 States and the District of Columbia that have either legalized the use of medicinal marijuana, recreational marijuana or both, or decriminalized possession laws.[1]

 

In Michigan, the following 14 Cities passed laws decriminalizing marijuana possession and use – Ann Arbor, Detroit, Flint, Grand Rapids, Lansing, Jackson, Ferndale, Hazel Park, Oak Park, Berkley, Huntington Woods, Pleasant Ridge, Saginaw, Mt. Pleasant and Port Huron.   The latter 8 cities doing so in 2014.[2]

 

Marijuana as a Nuisance

 

As a result of the legalization of medical marijuana or marijuana, in general, many condominium projects are now seeing a rise in marijuana use resulting in increasing “marijuana odors” in the hallways, throughout the buildings and in other common areas.  The odor coming can be offensive, intrusive and affect the quality of life of the other co-owners, much like it is with cigarette secondhand smoke.   This is particularly so in condominium projects where smoking in the hallways and/or in one’s unit can result in the smoke and odor entering the residence of all of the co-owners on that floor and/or building.   Moreover, marijuana smoke carries the drug THC, which has numerous side-effects, such as, a decrease in short-term memory, dry mouth, impaired motor skills, reddening of the eyes, and feelings of paranoia or anxiety.  Therefore, many members are concerned with the increase in or potential increase of marijuana use within their condominium projects and are requesting their Boards to address the issue.

 

Addressing the Nuisance

 

The majority of condominium bylaws have a nuisance provision that prevents a co-owner from doing any activity that may be or becomes an annoyance or a nuisance to the other co-owners of the condominium project.  Thus, the Board can address the marijuana odor by asserting that the practice by the co-owner is a nuisance and/or health problem to other co-owners which under most condominium governing documents allows the Association to warn and/or penalize the co-owner if the infraction continues.  The Board may require the individual to run HEPA filters inside his/her unit, seal all penetrations in walls, ceilings and floors, and install weather-stripping and door sweeps on doors to stop the “odor” from migrating into the common areas and surrounding units.

 

However, many co-owners feel that the above actions are not enough.  Currently, there is a growing trend in condominiums nationwide to impose a total ban on all smoking regardless of the source anywhere on the property—common areas, indoor and out, and even in the individual residences and on their balconies and patios.  The rationale is that secondhand smoke is a proven health hazard and it is impractical or impossible to prevent smoke from migrating into common areas or other residences due to inherent construction and ventilation limitations.  In addition, the Board can also use the nuisance provision to prevent marijuana use as an illegal activity, as it is still a violation of federal law.

 

In addition to actions taken by condominium boards, certain counties across the State, such as Ingham, Washtenaw, Genesee, Midland, Saginaw, Wayne, Lenawee, St. Clair Counties to name a few, have adopted clean indoor air regulations that prohibit smoking in public places, which includes lobbies, hallways and other common areas in condominium projects.  If the county has adopted such regulations, the Board may declare that the entire condominium project is a non-smoking establishment and post no smoking signs throughout the project.   If there are violations, the Board may seek enforcement of the ban by the county, which is overseen on the State level by the public health consultant at the Tobacco Section, Division of Chronic Disease and Injury Control, Michigan Department of Community Health[3]

 

Unfortunately, there is only a single consultant for the entire state and thus, enforcement may be minimal.  Therefore, in a likelihood, it will be up to the Board to address claims of nuisance for marijuana odor.

 

Medical Marijuana Complications

 

The use of medical marijuana by co-owners, tenants and/or non-co-owner occupants is complicating how a Board deals with marijuana odors.  Many proponents and advocates for the use of medical marijuana argue that an outright ban, without reasonable accommodations, is housing discrimination contrary to the Fair Housing Act, the Elliott-Larsen Civil Rights Act and the Persons with Disabilities Civil Rights Act of 1976, against the individual who needs marijuana for a medicinal purposes.    These proponents/advocates argue that if the Board does not allow reasonable accommodations such as the use of HEPA filters inside his/her unit, sealing all penetrations in walls, ceilings and floors, and installing weather-stripping and door sweeps on doors, it is discrimination per se by the Association.

 

On the other hand, the Michigan Senate recently passed Senate Bill 72 that would allow landlords to ban tenants from smoking or growing medical marijuana in their rental units.  There is also a 2011 opinion from state Attorney General Bill Schuette, which says that landlords can ban the use of medical marijuana in rental units without violating Michigan’s Medical Marijuana Act.[4]

 

Unfortunately, Michigan’s Medical Marihuana Act, MCL 333.26421 et. seq., is unclear as it relates to the use of medical marijuana and the ability to ban its outright use within the condominium project and within a condominium unit and the Act’s interplay with the Federal Fair Housing Act.

 

Implementing an Outright Ban

 

Although the total ban on marijuana use, along with smoking in general, might be accomplished via the implementation of rules and regulations that carry out the nuisance provision within the condominium bylaws, it is recommended that such a total ban be accomplished by an amendment to the condominium bylaws.  A challenge to the outright ban would be more likely to succeed if the ban were enacted via a rule rather than a bylaw amendment as rule can be overturned if it is unreasonable, vague unfair or unrelated to the operation and purpose of the condominium project.  On the other hand, if the ban were accomplished via a bylaw amendment, it could only be overturned if deemed to be unreasonable and/or against public policy.  Most current condominium documents do not address medical marijuana or marijuana, in general, however our office has a specific provision regarding the proper use and rules and regulations pertaining to medical marijuana and marijuana, generally.  Indeed, it is prudent for Boards to take reasonable steps to address such issues before they arise.

 

One court has already upheld an outright ban on all forms of smoking within a unit.  In Suave v. Heritage Hills 1 Condominium Owners Association, No. 06CV1256, Colo. Dist. Court, November 7, 2006, a Colorado court concluded that the smell of secondhand smoke and its seepage into the unit of a non-smoker represented a nuisance, justifying the condominium association’s approval of a declaration amendment banning smoking in all units.  In addition, a recent District of Columbia Superior Court issued an injunction against a homeowner from smoking cigarettes, cigars or marijuana in his home because his neighbors claimed that they are being harmed by smoke that is sneaking into their home through a hole in the basement.[5]

 

Finally, Boards should take the issue seriously when a co-owner comes to them about concerns about marijuana odor.  Although in most instances, a court will examine a Board’s response to concerns raised by a co-owner under the business judgment rule[6] that will not stop an individual who feels aggrieved from filing suit.  In Chauncey v. Bella Palermo Homeowners’ Association, et al., Orange County Superior Court Case No. 30-2011-00461681, a jury found that the Association breached its governing documents by failing to address secondhand smoke. The plaintiff homeowners repeatedly complained to the homeowners’ association and the property manager about secondhand smoke from the tenants in the adjoining unit. When the association failed to take steps to address the situation, plaintiffs filed suit against the association, the management company, the landlord of the adjoining unit and two of the rental tenants in the unit. In returning a verdict in favor of the plaintiffs, the jury found all of the defendants negligent and also found the association in breach of the Covenants, Conditions & Restrictions (“CC&Rs”) for the project under a breach of contract theory, despite the CC&Rs not specifically prohibiting smoking at the project. The CC&Rs did contain a ‘nuisance’ provision and other provisions requiring the association to ensure the owners were entitled to the ‘quiet enjoyment’ of their unit.

 

Conclusion

 

There are a number of issues for Boards to consider when addressing marijuana use and odors.  Each community is unique and needs may vary.  Because concerns regarding marijuana use and odors are only increasing, Boards should consult with their legal counsel before adopting rules, imposing restrictions related to marijuana or amending their bylaws to address any problems.

 

William Z. Kolobaric is an attorney with the law firm of Cummings, McClorey, Davis & Acho, P.L.C. where he focuses his practice on community association law, construction law, real estate law, creditor’s rights in bankruptcy and probate and estate planning. He has extensive experience in state and federal courts involving a wide scope of real estate, commercial litigation and creditor’s rights matters. He can be reached at (734) 261-2400 or wkolobaric@cmda-law.com. Please view The Michigan Community Association Law Blog at http://www.micondolaw.com for additional resources on Michigan Community Association Law.

[1] Wikipedia – Timeline of Cannabis legalization in the United States.

[2] Michigan Radio Newsroom – November 7, 2014 – These 14 cities in Michigan have passed laws decriminalizing marijuana possession and use.

[3] Please see Enforcement Contact List at

http://www.michigan.gov/mdch/0,1607,7-132-2940_2955_2973_55026—,00.html.

[4] Michigan Attorney General Opinion No.  7261, September 15, 2011

[5] Case No. 2014 CA 007715 B, COPPINGER, BRENDAN, et al. Vs. GRAY, EDWIN, et al.

[6] The business judgment rule insulates an officer or director of a corporation from liability for a business decision made in good faith if he is not interested in the subject of the business judgment, is informed with respect to the subject of the business judgment to the extent he reasonably believes to be appropriate under the circumstances, and rationally believes that the business judgment is in the best interests of the corporation.