Community Associations Update - June 2015
Smoking in D.C. Condominiums: The Marijuana Update
By Jhumur Razzaque
As many of you are already aware, the legalization of the possession and use of marijuana in the District of Columbia went into effect on February 26, 2015. As with every law, of course, there are certain limitations to the possession and use of this substance.
Under the current laws in D.C., it is legal for anyone 21 years of age or older to possess, use, or transfer marijuana. Specifically, it is legal for anyone at least 21 years of age:
- To possess two ounces or less of marijuana;
- To transfer one ounce or less of marijuana to another person who is at least 21 years of age, so long as no payment is made for the exchange and there is no other exchange of goods or services for the marijuana being transferred;
- To grow up to six marijuana plants, with three or fewer being mature flowering plants.
Possession of marijuana related drug paraphernalia is also now legal for adults at least 21 years of age, as long as it only contains one ounce or less of marijuana. Such paraphernalia includes bongs, cigarette rolling papers, and cigar wrapping papers. The use of marijuana is only legal on private property; smoking or using marijuana in any other manner in public areas or on federal land is still illegal. In a nutshell, smoking marijuana is legal in your private residence or home, or on someone else’s private property where smoking marijuana is not otherwise prohibited.
With all of the above in mind, we arrive at the following question: how do we address complaints of marijuana smoking in residential condominium units, if it is now legal to smoke the substance in your own home?
As a starting point, it is important to remember that a general prohibition on smoking would also apply to marijuana smoke. That is, if the condominium association’s governing documents prohibit smoking in units or on the common elements, or both, then this also includes the prohibition of marijuana smoke. The association has the power to enforce this prohibition as long as it is authorized by the governing documents of the association.
If the association’s governing documents do not prohibit smoking in individual units and there are complaints of marijuana smoke emanating from a unit(s), then, while the association cannot ban smoking in the unit, it should attempt to abate the nuisance. Generally, the governing documents of most associations address nuisances in a condominium, and place a restriction on unit owners from engaging in activity which would disturb the quiet enjoyment and comfort of the community. If the marijuana smoke, or odor, is so pervasive as to cause a nuisance, the association should attempt to abate the nuisance by determining whether anything can be done with regard to the common elements to prevent the smoke smell from permeating. Another option would be for the association to hold an informal mediation session between the complaining owner(s) and the offending owner(s) to try to resolve the issue. Additionally, and if necessary, the unit owners themselves could initiate a lawsuit against their offending neighbors for private nuisance.
In conclusion, the legalization of marijuana in D.C. will most likely have very little to no effect on condominium associations with regard to handling smoking complaints. If smoking is prohibited by the association’s governing documents, then smoking marijuana would fall under the general umbrella of “smoking,” and therefore be prohibited. In order to determine the association’s options in regards to complaints concerning marijuana smoke, the association must look to its governing documents, as it would with cigarette-related smoking complaints. If you have questions or would like assistance in the review and interpretation of your governing documents, please contact your association’s attorney.