Q: Can smoking of tobacco and cannabis be prohibited in units? This is becoming complicated with cannabis being legalized in some states and the District of Columbia, decriminalized in others and gaining medical status.
I have attended meetings for condo associations where this has been discussed. One attorney said that smoking can be prohibited in units, and that the board can take action against tobacco use. If cannabis is being used, he said, call the police. Secondhand smoke can cause health risks to others, allowing for smoking regulations in units. Another attorney said judges do not like to litigate what goes on in private residences. If there is smoking occurring in a unit, it is up to the unit owner who is bothered by it to acquire air filtration systems, not the actual smoker.
In my state cannabis use is decriminalized. Calling the police, who will merely issue a fine to the smoker, is going to be an annoyance to the police. Also, in my state, cannabis now is available for medical purposes. One attorney said the only time to call the police is if there is a concern about drug dealing. Otherwise, private things happen in private homes.
The information I find online about making a condo building, including the units, smoke-free is confusing. What is your opinion?
A: This is a complex area of law and I will try to explain as best as I can. Community association law is clear, throughout the country: Condo owners are obligated to comply with the condominium’s legal documents, including any amendments to those documents.
If your condo association follows all of the rules for amending its legal documents and adopts an amendment prohibiting smoking in units, my stance subject to one caveat is that the amendment is valid and should be honored by all owners.
What is the caveat? There is a priority in condo law. First, we have the state condominium act. Next, the declaration, then the bylaws and finally the rules and regulations adopted by the board of directors. If, for example, state law says you need 100 percent of condominium unit owners to agree to terminate the association, that’s carved in stone; the board cannot reduce that number. The same logic applies if the condo declaration says no pets are allowed.
However, if the declaration allows pets, then the board can adopt rules and regulations as to how pets can be kept by unit owners.
Most of us privately believe that our home is our castle. We don’t want anyone to interfere with our right to live peacefully in our private dwelling. But living in a condominium is democracy at its best and unfortunately at its worst. As stated earlier, if the legal documents are properly amended, smoking can be prohibited.
However, we have to go back to the priorities discussed above. If a condo board wants to prohibit smoking in the common elements, I believe a bylaw amendment is sufficient. However, if the board wants to prohibit smoking in units, I strongly recommend that the declaration the higher priority be amended.
Finally, if state law allows marijuana smoking, can the condo board prohibit it? My answer is yes. The board can impose more restrictive requirements than state laws, so even if smoking pot is allowed, the condo board can legally prohibit it, so long as the documents are properly amended.
News Moderator: Katelyn Baker
Full Article: If State Law Allows Marijuana Use, Can Condo Board Prohibit It?
Author: Benny L. Kass
Contact: 312 222-3232
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Website: Chicago Tribune
