For many years, marijuana was classified as a Schedule I controlled substance under the federal Controlled Substances Act, making it illegal under federal law even when permitted under state medical marijuana laws. That federal prohibition created a significant obstacle for residents seeking permission to use medical marijuana as a reasonable accommodation under the Fair Housing Act.
Effective April 28, 2026, a United States Department of Justice final rule moved certain medical marijuana from Schedule I to Schedule III under the federal Controlled Substances Act. Specifically, the rule applies to marijuana contained in a Food and Drug Administration approved product and marijuana subject to a qualifying state medical marijuana license. Marijuana outside of those categories generally remains a Schedule I controlled substance, while a separate federal proceeding considers broader marijuana rescheduling.
The change may be significant for condominium and homeowners association boards. While community associations can still regulate marijuana through their governing documents, boards should no longer assume that every request to use medical marijuana as a reasonable accommodation under the Fair Housing Act can be denied solely because marijuana is illegal under federal law.
Is Medical Marijuana Still Illegal Under Federal Law?
The federal government has changed the classification of certain medical marijuana. Effective April 28, 2026, marijuana contained in an FDA approved drug product and marijuana subject to a qualifying state medical marijuana license were placed in Schedule III. The federal government also created a regulatory structure that recognizes qualifying state medical marijuana programs. Michigan and Illinois both permit medical marijuana and adult recreational marijuana, subject to their respective state statutes. Michigan permits adult marijuana use under the Michigan Regulation and Taxation of Marihuana Act, while Illinois permits adult cannabis use under the Cannabis Regulation and Tax Act.
However, this does not mean that marijuana has been completely “legalized” under federal law. Recreational marijuana and marijuana that falls outside the qualifying medical marijuana framework generally remain Schedule I controlled substances while broader rescheduling remains pending. As a result, the federal classification of marijuana will depend in part on the type of marijuana and the circumstances surrounding its use.
Does Medical Marijuana Rescheduling under the CSA Change the Fair Housing Act?
The Fair Housing Act prohibits discrimination based on disability. 42 U.S.C. 3604(f)(3)(B) provides that discrimination includes refusing to make reasonable accommodations in rules, policies, practices, or services when the accommodation may be necessary to afford a disabled person an equal opportunity to use and enjoy a dwelling. 42 U.S.C. § 3602(h) also provides that the definition of a protected handicap does not include the current illegal use of or addiction to a controlled substance.
Before the 2026 change in federal law, this created a substantial obstacle for residents requesting an accommodation to use medical marijuana. Even when marijuana was permitted under state law, the requested marijuana use remained illegal under federal law.
A key federal case addressing this issue was Forest City Residential Management, Inc. v. Beasley, 71 F. Supp. 3d 715 (E.D. Mich. 2014). In Forest City, a tenant with multiple sclerosis requested permission to use medical marijuana in her apartment. The Eastern District of Michigan held that the housing provider was not required to provide the requested reasonable accommodation. The court relied heavily on marijuana’s status as a Schedule I controlled substance. At the time, federal law provided that marijuana had “no currently accepted medical use in treatment in the United States.” The court concluded that requiring the housing provider to permit medical marijuana would require the housing provider to accommodate conduct prohibited by federal law.
While Forest City has not been overruled, the 2026 rescheduling creates a substantial question about whether the same reasoning would apply to marijuana that now falls within Schedule III. When Forest City was decided, all marijuana at issue in the case was treated as a Schedule I controlled substance. Accordingly, condominium and homeowners association boards should be cautious about continuing to rely on Forest City for the broad proposition that medical marijuana can never qualify as a reasonable accommodation.
This does not mean that every owner or resident who uses medical marijuana is now automatically entitled to an accommodation. A resident requesting a reasonable accommodation must still satisfy the normal requirements of the Fair Housing Act. Among other things, there must be a disability, a disability related need for the accommodation, and a requested accommodation that is both necessary and reasonable to ameliorate the effects of the disability. The important change is that federal illegality may no longer provide an automatic basis for denying the request when qualifying medical marijuana is involved.
Can a Condo or HOA Still Ban Marijuana?
The reclassification of marijuana under the Controlled Substances Act has no impact on whether community associations can ban the recreational use of marijuana. The fact that marijuana may be decriminalized under state law, or classified differently under federal law, does not eliminate private contractual restrictions contained in restrictive covenants.
Condominium and HOA governing documents routinely prohibit conduct that would otherwise be legal. Associations may restrict rentals, pets, commercial activities, parking, and smoking. Marijuana use can also be regulated through properly drafted governing documents, subject to applicable federal and state law. As a result, the rescheduling of qualifying medical marijuana does not automatically invalidate any restrictive covenants prohibiting marijuana use or smoking.
Can an HOA Ban the Smoking of Medical Marijuana?
Another important distinction is between using marijuana and smoking marijuana. Even if an owner or resident establishes a disability related need to use medical marijuana, that does not necessarily mean the resident has a disability related need to smoke marijuana inside a condominium unit.
Smoke and odors can migrate into hallways or neighboring units through walls, doors, ventilation systems, and utility penetrations. Most condominium and HOA governing documents also contain nuisance provisions that prohibit activities that interfere with another owner’s use and enjoyment of their property. Accordingly, a community association may have legitimate reasons to regulate marijuana smoking even when medical marijuana use itself may qualify for consideration as a reasonable accommodation.
If an owner or resident requests permission to smoke medical marijuana in violation of an existing smoking prohibition, the association should determine whether smoking is actually necessary or whether another method of consuming medical marijuana could provide an effective reasonable accommodation. Given that each case is fact-specific, condominium and homeowners associations should consult with a community association attorney in determining whether to grant or deny a request to use marijuana as a reasonable accommodation.
What Should Condo and HOA Boards Do About Medical Marijuana Requests?
A community association board receiving a request involving medical marijuana should determine:
- whether the request is disability related;
- whether the marijuana falls within the state-regulated medical marijuana system covered by the federal rule;
- what association restriction requires an accommodation; and
- whether the requested method of use is necessary.
A request to use medical marijuana and a request to smoke medical marijuana should not automatically be treated as the same accommodation.
Community association boards should also keep three principles in mind. First, federal rescheduling does not automatically invalidate existing restrictions on marijuana use, smoking, or nuisance conditions. Associations may continue to enforce valid governing document restrictions, subject to applicable federal and state law.
Second, boards should not automatically deny a disability related accommodation request based solely on the prior rule that marijuana is a Schedule I controlled substance. If the request involves qualifying medical marijuana, a community association should evaluate the request under the normal requirements of the Fair Housing Act.
Finally, each reasonable accommodation request should be evaluated based on its particular facts. Given the recent change in federal law and the lack of significant case law interpreting medical marijuana accommodation requests under the new Schedule III framework, condominium and HOA boards should carefully evaluate these requests and consult a community association attorney when receiving requests to use marijuana for medical reasons.
