Three Options for Condo Associations Regarding Legal Marijuana
December 6th has come and gone and after an overwhelming vote in favor of recreational use of marijuana, proposition 1 passed. Under state law, the use of marijuana for adults over the age of 21 for recreational purposes is now legal. “Under state law” is a very important part of that sentence. That’s because under federal law the use and possession of marijuana is still illegal. That means that Condominium boards still have the option to ban the substance due to its federal illegal status.
Medical marijuana has been legal in Michigan for some time and many condo boards chose to update their Bylaws as a result. The good news is that if your current Bylaw provisions work for your Association, you probably don’t need to update them. However, if you notice an increase in co-owner complaints about marijuana use or an increase in non-compliance with your Bylaw provisions, you may need to update those provisions.
What if your Association has yet to deal with marijuana use? Does the Association have to deal with it? Yes and no. In our opinion, Condominium Associations have three options:
Option #1 – Ban It!
We don’t mean to be a buzz-kill, but depending on your community and the desires of your co-owners, you may want to take the conservative route and ban the substance altogether. It is illegal under federal law and condos do have the power to ban the substance. If you want to ban marijuana use, the Association should amend its Bylaws. To do that, it’s important to hire an attorney to help as it is not an easy task and requires that certain procedures are followed. It is also important to have an attorney assist in crafting the language of the amendment.
Option#2 – Use Your Current Bylaws to Regulate the Use of Marijuana
Chances are your current Bylaws have clauses preventing a co-owner from engaging in illegal activities or causing a nuisance to other co-owners. Since marijuana is still illegal under federal law, using those Bylaw provisions to prohibit marijuana use is possible. Also, let’s face it; marijuana carries with it a strong order that can permeate through ventilation. It can travel from one unit to another. Therefore, marijuana smoke would be classified as a nuisance. We have never seen Condominium Bylaws that do not allow an Association to prohibit and remove nuisances and those provisions should allow the Association to regulate the use of marijuana without necessitating a Bylaw amendment.
Option #3 – Attempt to Regulate It
This last option will require a carefully worded amendment to the Bylaws. Keep in mind that it will most likely be difficult to come up with wording that makes everyone in the community happy. It may even prove impossible to come up with language that will please a 2/3 majority of the co-owners and mortgagees necessary for the Bylaw amendment to pass and be enacted. The Bylaw amendment would need to regulate where it is consumed, i.e., allowed in units only and not on the common elements. The amendment would also have to regulate how it is consumed, i.e., edible forms of marijuana are allowed, but smoking is not.
Due to the confusing nature of the topic, it is always best to consult a professional if you have any questions. At Tilchin & Hall, P.C. we’ve been helping Condominium Associations draft their legal documents since 1978 and we make sure to stay up-to-date with all the changes in law affecting condominiums.
Call 248-349-6203 to schedule a consultation today.
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