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.
