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• Do we need to update our rules?


Yes, probably, if your association’s rules do not already discuss cannabis usage in some firms. Short of an association amending its declaration or bylaws to prohibit smoking in units, a board may adopt rules (without owner approval) that put some limitations on smoking, such as banning cannabis use in the common areas, requiring specific mitigation methods to prevent too much smoke seeping from within a unit into the common elements, etc. Carefully drafted rules can avoid problem escalation so long as those rules are in place preemptively. Stated another way, boards should not wait until marijuana smoke becomes a problem to update the rules. Connect with the association’s attorney and put the rules in place to get in front of any issues before they occur.


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• What about conflicting rights anddemands, where one individual cites a medical need to smoke marijuana, and another cites a medical issue with second-hand smoke?


Let’s start by talking about the “right” to smoke marijuana and the “right” to live in a community association without second-hand smoke.


First, some cannabis users like to cite a right to smoke cannabis for medical use as a “reasonable accommodation” under the Federal Fair Housing Act (like the right to have a support animal). However, marijuana use (medical or recreational) remains illegal under federal law, so citing federal law is a dead-end. However, while the board must make certain accommodations under Illinois state law, the requirement for a board to reasonably accommodate traditional “smoking” is questionable. Most attorneys take the position that a board’s responsibility to reasonably accommodate a medical user need not extend to smoking cannabis in the traditional sense – certainly not where there are multiple alternative methods for cannabis use.


Second, some association occupants like to cite their right to live in a smoke-free environment due to health concerns or issues, which is a flawed argument as well. While an association must accommodate individuals to a certain extent, and consider the health and well-being of all residents, a board cannot ban smoking unilaterally simply because an occupant has a medical sensitivity to second- hand smoke. The extent to which the board is responsible for taking certain actions remains questionable and highly fact-specific. A case in the state of Maine involving a condo association, a medical-marijuana user, and a unit owner who claims the smoke aggravates her medical condition is now case been


ow working its way through federal court. While that e is pending,


t in plac before the issue arose. t s


pending it’s possible the whole mess could have n avoided if the association had a firm smoking policy ace befo


• Can unit owners grow marijuana? If so, can they on a Limited Common Element patio or porch?


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The Cannabis Act only allows medical marijuana patients/ users to grow marijuana for personal use, but those medical users must have a medical marijuana card. Those users may have up to five (5) plants at a time. Non-patients are not allowed to grow marijuana in their home.


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Furthermore, Section 10-5(b)(4) of the Cannabis Act also prohibits growing a plant in “a location where they are subject to ordinary public view” or where the plant is accessible to “unauthorized access.” Thus, even a card- carrying medical marijuana patient may not grow his/her plants on a townhome patio where neighbors or other owners can see the plants or where a person can walk onto the terrace and grab it freely. In that case, the board can demand the plants be moved to a less conspicuous location.


• Aside from rules and amendments, what else should we do to control the situation?


After robust rules and carefully drafted declaration language, encouraging frank discussionk


among neighbors


should be the first line of defense against any nuisance. As marijuana use becomes more prevalent and socially acceptable, the preferences of different occupants are going to conflict. To the extent the board can help facilitate communication among neighbors who may have issues with one another – one neighbor who dislikes marijuana odor versus another neighbor who likes to smoke within his/her unit – the better off the association will be. Sometimes, a dialogue between two neighbors can be far more constructive than board involvement, letters from attorneys, and the levying of fines.


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