Condo Media - May 2017 - 32

[SMOKE
SIGNALS[
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:
n Can condominiums ban the cultiva-

tion, use, or possession of pot?

n Do existing smoking bans cover pot?
n If there is no smoking ban in place,

can a condominium control marijuana
smoking under an existing nuisance
provision contained in the condominium documents?

n What are the casualty risks that result

from the cultivation of marijuana
plants?

n Will existing insurance policies cover

damage related to the cultivation of
marijuana?

n 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
from the Regulation and Taxation
of Marijuana Act 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 that 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.
NUISANCE AND INSURANCE
CONSIDERATIONS
Finally, most condominium documents
contain boilerplate nuisance provisions
that prevent any use of the units that
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.

Massachusetts condominiums may
lawfully ban the cultivation, smoking,
and distribution of marijuana.
32

CONDOMEDIA
Condo Media - May 2017

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