www.caioc.org
Te law also allows “the ability of an individual or private entity to prohibit or restrict any of the actions or conduct otherwise permitted under Section 11362.1 on the individual’s or entity’s privately owned property.” Tis presumably means that while it may be legal to use marijuana on private property, it is not a “right” and thus can be taken away via contract. Tus, a landlord can prohibit a tenant from using marijuana on the leased premises. While likely not contemplated by the drafters of the new law, presumably a homeowners association should be able to provide restrictions or a ban on the common area.
Te use of marijuana for medicinal purposes has been permitted in the past and will be permitted in the future. Tus, restrictions on the properties may not apply in the same manner to those with disabilities that require marijuana as part of a treatment.
Historically, the courts have been reluctant to provide community associations with control over activities within the confines of individual homes and private spaces (like private patios), unless the conduct is clearly unlawful, or otherwise specifically prohibited in the Association’s governing documents. In recent years, local courts have repeatedly acknowledged the safety concerns related to second-hand smoke of cigarettes and presumably the same would apply to marijuana smoke.
An association’s rule-making authority is often set forth in the governing
documents and may provide a board the authority to draft rules that the board deems necessary for the management of the association. Clearly, if an association has the ability to adopt rules regarding the use of the common area, an association is able to adopt rules prohibiting consumption of marijuana by anyone in the common areas.
Te more difficult question is whether consumption can be restricted by the association in privately owned homes, yards or patios. Te spirit of the law is to allow people to consume marijuana in the privacy of their own homes. Tus, absent some extraordinary circumstance (e.g., shared ventilation systems between homes), there is some risk that a rule banning the use throughout the entire community may not be upheld. Te results may be different if the members of an association adopted an amendment to the CC&Rs providing for a complete ban.
Tis is an emerging area of law and it is reasonable to expect that some of the concerns regarding how the law will be interpreted will be resolved in the next months or years. Until then, managers and directors should consider working with legal counsel to adopt rules that best meet the needs of the residents in light of the legalization of marijuana.
This article was written and submitted by Denise D. Iger, Esq. of Iger Wankel Bonkowski, LLP.
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