While the recent decriminalization of marijuana in Massachusetts has no doubt pleased a segment of the population, condominium associations and their boards are left facing difficult decisions whether to attempt to regulate, or outright ban, recreational use in the common areas and units of their condominiums, as well as harvesting marijuana within individual units.
The smoking and/or growing of marijuana creates a host of potential consequences for individuals and families living in the close confines of a condominium community beyond those of bothersome odors, which can be enough in and of itself to warrant prohibition of marijuana smoking.
Harvesting marijuana requires a substantial amount of water, heat and light, some of which are common area expenses for certain communities. If a single unit owner begins growing marijuana in their unit, the increased utility costs caused by that operation could be funded in part by other unit owners’ common area fees. More significant than the financial burdens created, the health and safety of neighboring unit owners can be compromised by the increased risk of fire from the intense light and heat required or flood from the increased water usage. For those associations with commercial units, additional factors to consider are the potential for increased retail activity, along with a possible heightened risk of robbery given the contents of the unit.
Another consideration for associations is whether condominium master insurance policies will cover losses related to marijuana usage. Complicating the issue of whether the growing and harvesting of marijuana would be considered an uncovered act by insurance carriers is that the possession, consumption, harvesting, etc. of marijuana remains illegal under federal law. While the United States Justice Department has generally advised its attorneys general to refrain from prosecution of smaller scale marijuana-related offenses in states that have legalized its possession, insurance companies are not likely to be as lenient when claims arise from the growing or other misuse of a federally banned substance, especially if that insurance carrier was not advised of the use in the first instance.
A condominium board can restrict or otherwise regulate the use of marijuana in the common areas by simply updating its rules and regulations by a majority vote of the board. Banning or regulating marijuana use within individual units must be done through an amendment to either the Master Deed or the association’s declaration of trust/by-laws, which typically require at least a two-thirds vote of the beneficial interest of unit owners. If there is an existing ban on smoking, passing such an amendment will no doubt be easier, however some condominiums have a population of smokers large enough to defeat an attack on smoking and related uses. In those instances, boards can soften the blow by limiting the restriction to the growth and harvesting of marijuana.
If boards are faced with communities which for one reason or another are opposed to banning the growing and harvesting of marijuana, less intrusive restrictions can be presented, including banning certain harvesting techniques, requiring separate utility meters for those units who elect to grow and imposing additional insurance obligations for any unit engaged in a growing operation. In circumstances where boards cannot obtain the votes to ban marijuana or smoking in general, most associations can always rely on existing nuisance provisions contained in their governing documents if smoke or other odors permeate from a unit into the common area or another unit. This may become an easier task for boards to accomplish as the Massachusetts House of Representatives is currently hearing a proposed bill which would establish secondhand smoke, including that from cigarettes, marijuana and the like, as a condition deemed to endanger the health or safety of those in the surrounding units. If the bill becomes law the local board of health will be vested with the authority to fine the offending unit owner and may order the unit owner to seal the unit to the satisfaction of other residents. In addition, the bill contemplates new language to be added to M.G.L. c. 183A prohibiting smoking (including marijuana) in all common areas and, if smoking is permitted in units under the governing documents, such activity shall only be permitted if the unit is sealed to the satisfaction of other residents “so that smoke, fumes or vapors are unable to enter into any other common areas or other units.”
While boards seeking to restrict recreational marijuana use and growing operations within units (provided they obtain the requisite vote of the unit owners) will rest on firm footing, attempts to prohibit or otherwise regulate marijuana use for medical purposes may be slightly more precarious.
Massachusetts law prohibits organizations of unit owners in a condominium or housing cooperative from discriminating against any person because of that person’s handicap status. M.G.L. c. 151B, §1(17) defines a handicap as “(a) physical or mental impairment which substantially limits one or more major life activities.” In the event a unit owner provides evidence of such a handicap and a confirmation from a physician or other medical professional that marijuana has been prescribed to treat the condition, an accommodation under c. 151B will likely be required.
In such circumstances, boards can continue to enforce an existing restriction on the transfer of marijuana smoke from one unit to another by requiring, among other things, the unit owner to whom the accommodation was granted to, among other options, implement a smoke filtration system or other similar mechanism to ensure other unit owners are not affected. The board could also explore with the affected unit owner whether there are other less invasive ways in which marijuana can be consumed inside the unit such as ingestion through edible form.
Boards are wise to take stock of whether the inevitable increase in recreational marijuana use is having or is likely to have an impact on their associations and take proactive measures to address such conduct before it becomes more difficult to regulate or restrict.
Originally posted July 26, 2017 on tlawmtm.com:
Chris is a founding member of Moriarty Troyer & Malloy LLC and brings nearly fifteen years of litigation and trial experience in the areas of community association, real estate and complex construction law. Chris’s practice also focuses on condominium construction defect and transitional litigation at the trial and appellate level of the state and federal courts as well as in various alternative dispute resolution forums.
In his condominium and real estate practice Chris represents residential and mixed-use condominiums, homeowner associations and property management companies in a broad range of matters and provides advice on operational and governance issues, interpretation and amendment of governing documents, rules and bylaw enforcement, developer transition issues and common area disputes. Chris also manages the firm’s common area lien enforcement practice.
Chris represents a wide variety of clients including condominium and homeowner associations, building owners, developers, general contractors, construction managers, subcontractors and suppliers in all aspects of construction transactions, disputes and litigation including defective work claims, breach of contract, and violations of M.G.L. c. 93A. Chris has expertise with disputes involving both public and private construction projects and has extensive experience with complex multi-party construction defect litigation.