Condo Media - January 2017 - 49

When considering the future impact
on my Maine condo and HOA clients, I
had to look no further than the recent
actions by boards around the country
dealing with this issue daily. With nearly
half of the states and 25 percent of the
U.S. population living in areas where pot
is legal, there are plenty of examples of
pragmatic actions boards can take. Even
with this empirical information, Maine
will be in for some surprises.
The board has a fiduciary responsibility to the owners to protect the
community from any activity creating
an annoyance or nuisance to the other
co-owners, either by owners, renters,
or guests. The first thing a board should
consider is implementing a total ban
on marijuana use, along with smoking
in general, through passage of a new
amendment to the condominium bylaws. Banning all smoking is important
to avoid charges of discrimination. A
bylaw amendment is less likely to be
overturned if deemed to be unreasonable or against public policy while
banning by a rule can be overturned
if deemed to be unreasonable, vague,
unfair, or unrelated to the issue at hand.
Also your lawyer can provide language
to allow the amendment to address
medical marijuana use, as this will present the most serious challenge.
Residents with debilitating medical conditions with prescriptions for
marijuana will feel their rights are being
violated when they cannot use or grow
marijuana in their own unit. Other residents may feel a total ban is a form of
housing discrimination contrary to the
Fair Housing Act and the Persons with
Disabilities Civil Rights Act of 1976.
Boards must consider this very real
issue and allow the flexibility to address
this serious matter.
However, the board must protect the
entire community's health, as marijuana smoke is not just an odor problem.
Secondhand marijuana smoke carries
the drug THC with its numerous side
effects including reddening of the eyes;
impaired motor skills; decreased shortterm memory; dry mouth; and feelings

of anxiety. This is especially true for
young children and older residents.
If one of the board duties is to protect
the market value of community, a
reasonable argument could be made
that a pervasive marijuana odor in the
common areas of a condominium will
discount the value of units in that building. Complicating the matter further
is smoking in general is a fire hazard.
Lighted cigarettes in any unit poses a
very real risk of exposing other residents to fire and potentially damaging
walls and ventilation systems. Some insurance policies specify smoke damage
caused by cigarettes will not be covered.
So what is a board to do? If a board
finds that despite its efforts to enforce
the ban of marijuana in individual units
due to it being a nuisance or health
problem, it may require the unit owner
to run a HEPA filter inside the unit; and
seal all penetrations in walls, ceiling,

and floors, including the installation of
weather-stripping and door sweeps on
doors to stop the migration of smoke
odor into the common areas and surrounding units.
In the end, this is all about community living. The board must be open to
communication with all the residents
on this potential area of conflict. If the
recent election has taught us nothing
else, we live in a changing world with a
diversified population of differing views.
It is a matter of personal freedom versa
community standards. A smart board
will get in front of this issue before its
agenda goes up in smoke.

JACK CARR, P.E., RS, LEED-AP,
IS SENIOR VICE PRESIDENT WITH
CRITERIUM-ENGINEERS IN
PORTLAND, MAINE.

Building Envelope
Restoration Specialists

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