In November of 2016, Massachusetts and Maine voters
approved the recreational use of marijuana. They join Alaska,
California, Colorado, Nevada, Oregon and Washington
in permitting the recreational use of pot. Lawmakers in
neighboring New Hampshire, Rhode Island, and Vermont
are considering doing the same. In addition, 28 states and the
District of Columbia allow some use of marijuana for medical
purposes. While the liberalization of marijuana laws seems
to be taking hold in many states, the cultivation, sale, and use
of marijuana remain illegal under federal law. Moreover, the
Trump administration is signaling plans to enforce federal drug
laws more strictly, a reversal from the Obama administration,
which largely tolerated marijuana industries in states where
voters had approved it. This conflict between federal and state
laws creates a hazy situation for all, including condominium
associations and property managers.
Now that it is legal for adult residents in Massachusetts and
Maine to grow their own pot, what are condominium boards
and property managers to do? Here are just a few of the issues
that have come up in my practice:
- Can condominiums ban the cultivation, use, or possession
of pot? - Do existing smoking bans cover pot?
- If there is no smoking ban in place, can a condominium
control marijuana smoking under an existing nuisance
provision contained in the condominium documents? - What are the casualty risks that result from the cultivation of
marijuana plants? - Will existing insurance policies cover damage related to the
cultivation of marijuana? - Must a condominium allow the use of medical marijuana as
a reasonable accommodation?
MARIJUANA BANS IN COMMUNITIES
How are condominium trustees and managers to protect
themselves and the associations they represent? First, propose
a ban on the cultivation and smoking of marijuana in the units.
The Massachusetts recreational marijuana law states that it
“shall not be construed to . . . prevent a person from prohibiting
or otherwise regulating the consumption, display, production,
processing, manufacture or sale of marijuana and marijuana
accessories on or in property the person owns, occupies or
manages, except that a lease agreement shall not prohibit
a tenant from consuming marijuana by means other than
smoking on or in property in which the tenant resides unless
failing to do so would cause the landlord to violate a federal
law or regulation.” The quoted language makes it clear that
Massachusetts condominiums may lawfully ban the cultivation,
smoking, and distribution of marijuana. The sole exception is
the consumption of marijuana by means other than smoking
cannot be banned in Massachusetts rental dwellings. When
proposing a marijuana policy, condominiums should consider
limiting the pot ban to the cultivation and consumption of
marijuana by smoking, while allowing the consumption of pot
by other means, since smoking is the most objectionable use of
pot because of drifting smoke and odors.
Since a ban on the cultivation and smoking of marijuana
regulates the use of a unit, a pot ban in Massachusetts would
require an amendment to the master deed or bylaws consented
to by the unit owners. Such amendments typically require a
supermajority of the unit owners to pass but, in light of the
inevitable litigation that will likely result, a condominium
that proposes a marijuana ban which fails to pass may be on
stronger legal footing than one that fails to take any action at all.
Some may argue that a condominium with a marijuana ban
may permissibly deny a reasonable accommodation request
made under the federal Fair Housing or Americans with
Disabilities Acts for the use of medical marijuana because
the use of pot remains a federal offense. In the employment
context, courts have denied medical marijuana as a reasonable
accommodation. While it remains to be seen how the courts
will treat such requests, the prudent course of action would
be to adopt a policy that bans the cultivation, smoking, and
distribution of marijuana, but expressly allows the consumption
of marijuana by other means.
- For those associations with an existing smoking ban, many such
bans prohibit the smoking of other substances in addition to
tobacco. A smoking ban should be reviewed and updated if the
current ban does not extend to marijuana.
Finally, most condominium documents contain boilerplate
nuisance provisions that prevent any use of the units which
others might find disturbing or offensive. When all else fails,
associations may rely on their nuisance provisions to curb the
growing and smoking of marijuana in units.
In Massachusetts and Maine, it is lawful for adults
over the age of 21 to:
- Possess up to one ounce of pot outside the home
in Massachusetts and up to 2.5 ounces in Maine - Possess up to 10 ounces of pot inside the home in
Massachusetts and 2.5 ounces in Maine - Cultivate up to six mature marijuana plants for
personal use (Massachusetts and Maine) - Cultivate up to 12 plants per household of two or
more adults in Massachusetts - Gift (but not sell) up to one ounce of pot in
Massachusetts and up to 2.5 ounces in Maine
In Massachusetts and Maine, it is unlawful to: - Sell any form of pot without a retail license
- Smoke or consume pot products in public places
or where tobacco smoking is prohibited - Possess, purchase, or grow pot if under the age of
21 (unless pursuant to a valid medical marijuana
permit) - Drive under the influence of marijuana
- Possess pot on school grounds or federal property
(Massachusetts) - Transport pot across state lines or send by U.S. mail
(Massachusetts) - Grow pot at home unless done discreetly and
securely
Tenants of Massachusetts rental housing cannot grow or
smoke pot if their landlord has a rule against it, but rental
agreements cannot prohibit tenants from consuming
marijuana in other forms such as edibles, oils, tinctures,
vapors, or salves.
NUISANCE AND INSURANCE CONSIDERATIONS
Aside from the issues that arise from pot smoking,
condominiums should act quickly to ban the cultivation
of marijuana. The hazards of an indoor growing operation
extend beyond the skunk-like smell and can pose real dangers
to all residents. Pot plants require large amounts of water,
electricity, humidity, and heat. If a ban is not implemented,
consider separately metering water and utility usage so that all
unit owners aren’t subsidizing the growing operations of a few.
The use of heat- and humidity-retaining insulation to enhance
plant growth can increase the risk of fire and mold hazards.
Insurance policies already exclude mold from coverage and,
since the growing of pot is illegal under federal law, you can
bet insurance companies will attempt to decline coverage
for marijuana-related damages due to “illegal acts” of the
occupants. Even if the “illegal acts” exclusion does not apply
in states where pot is legal, the failure of growers to strictly
comply with the state law’s requirements could still be used by
insurers to deny claims as “illegal acts.” As with mold, you can
expect to see litigation pertaining to marijuana-related claims
and perhaps even a marijuana exclusion added to future
insurance policies.
While we navigate this cloudy period, condominium boards
and managers should consider a ban on the cultivation,
smoking, and distribution of pot. A proactive board can
minimize the nuisance factors associated with these activities,
the potential costs of growing operations, and the hazards and
insurance risks posed by such operations by acting quickly to
propose such a ban.