I grew up in Boulder, but as I decided to attend college in Oklahoma, and have no chronic pain issues, I never participated in the annual “4/20 Day” festivities that occur on the CU campus. For those not familiar with the tradition, April 20 is the day when individuals either protest the illegality of marijuana by smoking in public, or smoke in public to, well, smoke in public.
When Colorado voters approved medical marijuana over ten years ago, the effects were not immediately felt. Everyone recognized that marijuana was still illegal at the federal level, even for pain management, but no one was quite sure how to handle distribution and enforcement at the local level.
In recent years, the increased number of dispensaries and new regulations have made medical marijuana commonplace. We have seen, however, medical marijuana cause unexpected and novel controversies with our clients.
Smoking in Condominiums
It’s extremely common for condominium owners to complain about the smoking habits of their neighbors. Sometimes smoke travels through electrical outlets and common walls; other times, smoke travels through common vents. Non-smokers hate to have their homes smell of smoke; you can imagine how this is compounded when the scent is marijuana smoke.
Dispensaries in Condominiums
Another marijuana-related conflict occurs when a condominium has both commercial and residential units, and a dispensary buys a commercial unit to set up shop. Some residential owners are horrified by the thought of a dispensary in the unit, convinced the shop will bring crime, increased insurance rates, and lower property values.
Many covenants prohibit “illegal activity.” When, as in Colorado, an activity is “kind of” legal, an Association has to determine whether it should attempt to enforce its “illegal activity” prohibitions against that activity.
Because medical marijuana is a relatively new issue in real property and community association law, most governing documents do not directly address these issues. We frequently advise condominium associations interested in banning cigarette smoking that they may need to pass an amendment to their Declaration to make such a ban enforceable. Similarly, other restriction in use – including use related to medical marijuana – may need to be regulated by the Declaration.