The HOA Could Potentially Prohibit The Growing of Marijuana Outside
In Nevada, the medical marijuana statutes permit the qualified patient to cultivate up to 12 mature plants. However, the law requires that the plants be safeguarded in an enclosed secure location. The statute does not define an enclosed secure location, so one could reasonably argue that the fenced backyard of a private residence is enclosed and presumably secure. Therefore, because the CC&Rs can restrict what a resident can and cannot plant in his yard, an HOA could potentially prohibit the growing of marijuana outside. Finally, some HOA’s have provisions which make violations of law a violation of the Governing Documents that can be pursued by the HOA. Medical marijuana patients residing in HOA’s should be mindful of what their association may prohibit.
Even though homeowners associations, for the most part, are not overly concerned with what you do in your own home, they are charged with making sure other Unit Owners enjoy quiet enjoyment of their Unit. Therefore, if a neighbor smells marijuana coming from your home, and reports the incident to the HOA, the HOA may take action. Neighbor conflicts have increased with regards to marijuana use because marijuana users oftentimes will keep their window open or smoke outside. All it takes is for one of your neighbors to complain and the HOA may feel compelled to take action under any number of applicable provisions of the Governing Documents.
Enforcement of CC&Rs:
Most HOA covenants have language addressing and banning nuisances in the community. For instance, the following is an excerpt from the CC&Rs of one Nevada community:
Nuisances: No noxious or offensive activity shall be carried on, in or upon any Lot or the Association Property, nor shall anything be done therein which may be or become an unreasonable annoyance or a nuisance to any other Owner. Without limit the generality of the foregoing provisions, no loud noises or noxious odors… The Board shall have the right to determine in accordance with the Bylaws if any noise, odor, interference or activity producing such noise, odor or interference constitutes a nuisance.
Interpretation of Restrictions: All questions or interpretations or constructions of any of the terms or conditions contained in the Article shall be resolved by the Board, and its decision shall be final, binding and conclusive on all of the parties affected.
Even though the CC&Rs give the Association Board the power to interpret the restrictions, the Board will need to determine whether the claimed invasion of the complaining owner’s property right is substantial. That means it is determined by what a reasonable person should have to endure living in close proximity to others. It is not judged by what only the complaining owners consider substantial. Cases dealing with this issue have held that a nuisance can exist where fumes, odors, or smoke are unreasonably offensive to persons of ordinary sensibilities, even though they do not cause material injury to property or endanger health and safety.
Some HOA’s Governing Documents contain provisions making a violation of law a violation of the Governing Documents. For instance, the following are excerpts from the CC&Rs of one Nevada community:
Violation of Law: Any violation of any federal, state or municipal law, ordinance, code or regulation with respect to any Unit by any Owner (other than Declarant) is hereby declared to be a breach of this Declaration and subject to all of the enforcement procedures set forth herein.
No Owner shall permit anything to be done or kept in his or her Unit or any improvement thereon that violates any of the restrictions contained in this Declaration or any law, ordinance, statute, rule, or regulation of any local, county, state of federal body, including, without limitation, local ordinances relating to zoning and building codes.
Marijuana cultivation and consumption are still illegal under Federal Law, so the above would apply.
Amendments to CC&Rs:
Further, even in the unlikely chance that your CC&Rs do not contain a prohibition regarding offensive odors or growing of certain plants outside, all it takes is a majority vote by the association’s homeowners to ban the use or cultivation of marijuana. “A majority vote” may mean a simple majority of 50%+, a “super majority” of 67%, 75% percent, or unanimous consent. A typical provision regarding the amendment of CC&Rs looks like this:
Amendment: Except as may otherwise be stated in this Declaration, this Declaration may be amended at any time and from time to time by an instrument in writing signed by the Association’s Secretary certifying the Association members entitle to exercise sixty-six and two-thirds percent or more of the voting power or each class of members of the Association have approved the amendment.
While amending the CC&R’s sometimes takes a considerable amount of effort on the part of the association board, as there are laws that must be followed with respect to notices and voting, the board could, in many instances, simply add a provision to its Rules and Regulations which often only requires a Board vote. That means that as few as three (3) people in your community could ban marijuana. As a medical marijuana patient, you should be aware that the association does have the ability to amend its Governing Documents to require compliance with Federal Law, if the provision does not already exist.
There are some circumstances where homeowners associations are not waiting until someone complains about their neighbor. In one instance an HOA board of directors is considering an amendment that specifically addresses marijuana use, including medical marijuana. A homeowners association in Colorado, which recently passed recreational uses of marijuana, is considering the following amendment:
Covenant and Restriction on Marijuana, Distribution and Growing: No Owner or occupant of a Property in the community may utilize his Unit for the purpose of growing or distributing marijuana, including medical marijuana. This covenant and restriction may further be clarified by the Board of Directors through Rules and Regulations. Owners will be responsible for any additional costs or damage resulting from a violation of this covenant and restriction, including but not limited to increase water and utility charges.
Of course, most homeowners associations are not generally interested in what happens inside units unless it has an adverse effect on other owners, like secondhand smoke or offensive odors. Regulation of marijuana activities is therefore most likely to appeal to condominium and townhome communities. Smaller communities sharing common ventilation systems may be the most interested in adopting covenants or rules restricting marijuana activities. For instance, with a 10 unit condominium community, if the odor of growing or smoking of marijuana is affecting five people, that community may be more inclined to restrict it by covenant or rule. However, in a 100 unit community, with the same number of people who are affected, that association might not view it as something that’s broad enough to justify adding a restrictive covenant or rule.
It remains to be seen whether courts will allow association to rely solely on nuisance provisions in their covenants as a way of prohibiting marijuana smoking within private residences. But, if such a ban were to occur, there could be legal challenges to the ban with respect to the medicinal use of marijuana. In order to hold a valid registry identification card a person must be diagnosed with a debilitating condition. Homeowners associations are subject to federal and state fair housing laws, which prohibit discrimination against persons with disabilities. However, because medical marijuana is still illegal under Federal Law, attempts to claim an accommodation under the Fair Housing Act for a disability are being rejected by the Department of Housing and Urban Development, who may also take a complaint filed by a medical marijuana card holder and provide it to Federal law enforcement.
If you are a cardholder and find yourself at odds with your homeowners association having the right attorney to represent you is paramount. The Wright Law Group is a Martindale Hubble AV rated law firm and is well equipped to assist you. Please call us at 702-405-0001 to schedule a consultation.