On November 8, 2016, Florida, North Dakota and Arkansas joined 25 other states and the District of Columbia in approving the use of medical marijuana. Now that medical marijuana is legal in more than half of the states in the United States, medical marijuana use is becoming an issue that condominium associations are forced to deal with. Many condominium bylaws will contain provisions that ban smoking, the creation of a nuisance or an illegal activity within a condominium. In order to get around these types of restrictions in condominium bylaws, a co-owner will likely argue that medical marijuana is legal under state law and that they are entitled to a reasonable accommodation under the Federal Fair Housing Act to accommodate a disability. This article will discuss whether a co-owner is entitled to a reasonable accommodation to use medical marijuana under the Federal Fair Housing Act.

When is a reasonable accommodation required under the Fair Housing Act?

In Forest City Residential Mgt, Inc ex rel Plymouth Square Ltd Dividend Hous Ass’n v Beasley, 71 F Supp 3d 715, 727–28 (ED Mich 2014), the Eastern District of Michigan analyzed what requirements must be satisfied in order to grant a reasonable accommodation under the Fair Housing Act (“FHA”). The Court held:

Section 3604 of the FHA prohibits discrimination in sale or rental of public housing on the basis of disability. It provides, in pertinent part:
As made applicable by section 3603 of this title and except as exempted by sections 3603(b) and 3607 of this title, it shall be unlawful—

(f)(1) To discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of—
(A) that buyer or renter,
(B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or
(C) any person associated with that buyer or renter.
42 U.S.C. § 3604. The FHA further defines discrimination:

(3) For purposes of this subsection, discrimination includes—

(B) a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling ….
42 U.S.C. § 3604(f)(3)(B).

An FHA reasonable accommodation plaintiff must establish that the proposed modification is both reasonable and necessary. Hollis v. Chestnut Bend Homeowners Ass’n, 760 F.3d 531, 540–41 (6th Cir.2014). “[T]he crux of a reasonable-accommodation … claim typically will be the question of reasonableness.” Id. at 541. An accommodation is reasonable when it imposes “no fundamental alteration in the nature of a program” or “undue financial and administrative burdens.” Smith & Lee Assocs., Inc. v. City of Taylor, 102 F.3d 781, 795 (6th Cir.1996). An accommodation is necessary if, “but for the requested accommodation, [the plaintiff] ‘likely will be denied an equal opportunity to enjoy the housing of [his or her] choice.’ ” Hollis, 760 F.3d at 541 (quoting Smith & Lee Assocs., 102 F.3d at 794–95).

Is medical marijuana use a reasonable accommodation?

In Forest City Residential Mgt, Inc ex rel Plymouth Square Ltd Dividend Hous Ass’n v Beasley, 71 F Supp 3d 715, 727–28 (ED Mich 2014), the owner of an apartment complex sought declaratory relief that a renter that had a medical marijuana card to treat multiple sclerosis was not entitled to use medical marijuana in her apartment. The Easter District held that:

Under federal law, marijuana is a Schedule I controlled substance with “no currently accepted medical use in treatment in the United States.” 21 U.S.C. § 812(b)(1). As previously discussed in section I, the federal Controlled Substances Act impliedly preempts the MMMA. Accordingly, to require Plaintiff to grant Defendant a reasonable accommodation to use marijuana would be to require Plaintiff to violate federal law…the Court shall GRANT IN PART Plaintiff’s Motion for Summary Judgment because the Court finds that Defendant is not entitled to a reasonable accommodation for medical marijuana use under the FHA.

Forest City Residential Mgt, Inc ex rel Plymouth Square Ltd Dividend Hous Ass’n v Beasleyy, 71 F Supp 3d 715, 730–31 (ED Mich 2014). See also Assenberg v Anacortes Hous Auth, 268 Fed Appx 643, 644 (CA 9 2008) (“The Fair Housing Act, Americans with Disabilities Act, and Rehabilitation Act all expressly exclude illegal drug use, and AHA did not have a duty to reasonably accommodate Assenberg’s medical marijuana use….Requiring public housing authorities to violate federal law would not be reasonable.”)

Accordingly, while the above cases did not deal with a condominium association, presumably other courts would apply the same logic and hold that a condominium association is not required to accommodate medical marijuana use that is illegal under federal law. However, it is worth noting the Eastern District of Michigan declined to issue an injunction to prevent the use of marijuana on the premises and declined to evict the tenant. Rather, the court held that these remedies were to be pursued under state law. Accordingly, condominium associations that seek to enforce restrictions that ban marijuana use,  medical or otherwise, should pursue remedies in state court for violating the condominium documents.

 Kevin Hirzel is the Managing Member of Hirzel Law, PLC and concentrates his practice on commercial litigation, community association law, condominium law, Fair Housing Act compliance, homeowners association and real estate law. Mr. Hirzel is a fellow in the College of Community Association Lawyers, a prestigious designation given to less than 175 attorneys in the country.  He has been a Michigan Super Lawyer’s Rising Star in Real Estate Law from 2013-2018, an award given to only 2.5% of the attorneys in Michigan each year. Mr. Hirzel was named an Up & Coming Lawyer by Michigan Lawyer’s Weekly in 2015, an award given to only 30 attorneys in Michigan each year. He represents community associations, condominium associations, cooperatives, homeowners associations, property owners and property managers throughout Michigan. He may be reached at (248) 480-8758 or kevin@hirzellaw.com.

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