Can Condo Associations Ban Cannabis Smoking in Units?

Can condo associations ban cannabis smoking in units? This reader wants to know how cannabis smoking can be prohibited if cigarette smoking isn’t.

Q: I recently received a letter from my condo association about a proposed amendment to our condo declaration to ban cannabis smoking in our units. The letter states “The Condominium Act states a condominium association may amend their governing documents to prohibit the smoking of cannabis within an owner’s unit though allowing the consumption of cannabis by other means. The Board of Directors has approved an amendment banning the smoking of cannabis in units. You are hereby notified that a meeting of the Unit Owners will take place for the purpose of considering the approval of the ban.”

This concerns me. Is this ban legal if it does not interfere with other residents? Is the condominium association within its rights to tell us what we can or cannot do in our own property? Does this impinge on the rights of unit owners?

This seems to be a ban that is prejudicial toward cigarette smokers. Personally, I abhor getting into our elevator with someone who has just finished a cigarette, smelling cigarette smoke in the hallway, or having smoke enter my unit from above the ceiling, but I have to put up with it.

How can the board allow the banning cannabis, if cigarette, cigar and pipe smoking are allowed?

Can Condo Associations Ban Cannabis Smoking in Units?

A: What you’re saying is, smoke is smoke, right? Well, some people definitely see it that way and others do not.

We’ve seen more homeowners associations taking action to ban or limit smoking of all kinds. In some cases some associations have banned all types of smoking. Depending on the building, the physical structure of some buildings handle smoking differently: some units are quite air-tight and when people smoke in the units, that smoke doesn’t infiltrate hallways or other units.

On the other hand, some buildings and their filtration systems are just terrible when it comes to smells and smoke. We’ve had readers email us when smoke has come into their units from smoke from the unit above. In other cases, the ventilation system carries the smoke from more distant units, and in still others, the smoke comes into neighboring units through the electrical outlets.

How Condo Association Rules Govern Unit Owners

With all that in mind, some associations have given up and have passed rules to ban smoking within the entire building, including within all the owned units. You can say that the ban does impinge and interfere with the rights of unit owners, but most rules in condominium associations do just that. Some buildings have rules on when you can make deliveries, when you can hold parties, when you can move into and out of your unit, and even whether and what type of noise is too much. When it comes to pets, the rules can vary from prohibiting pets, to limiting the number of pets, to limiting the type of pets you can have, the size of those pets and even the breed of dogs that are allowed.

Some associations also limit the number of unrelated individuals that can live in a condominium unit, while others might limit the number of full-time residents that can live in the unit. All of these rules affect the ownership rights of homeowners. The question then becomes whether these rules go far beyond what is permissible under the condominium organizational documents or what is permissible under state law.

If your state passed a law that allows condominium boards to limit or prohibit cannabis smoking within units, then your homeowners association can put limits in place and enforce them through fines or other means. In some circles, the question would revolve around whether the rule was reasonable or not. Some people might say it’s quite reasonable given that the federal government still considers cannabis a prohibited substance while cigarettes are not.

The Importance of Voting in Condo Associations

We can understand your frustration with your condominium association but when you elect the board members, you are giving those board members quite a bit of authority to run the association and to make rules on behalf of all of the homeowners. Voting matters. Especially this close to home.

We’ve talked about smoking regulations in the past, so we won’t deal with that issue here. But board associations can make arbitrary decisions. Some homeowners associations ban dogs but allow cats. For some pet owners, the ban on dogs is quite personal and seems discriminatory if their pet exceeds the weight allowance or type of pet.

No board is perfect in handling all issues, the question is whether the rules are proper under the association governing documents and under any applicable laws. In your situation if you want to determine if the rules are proper under the governing documents and under your state’s law, you might need to do some research or hire an attorney whose principal practice is in the area of community association law. Otherwise, if a majority of homeowners feel strongly about the issue, those same homeowners should work to vote in members to the association board that would reflect the interests of a majority of homeowners.