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Recreational Marijuana:  What Every Association Should Know

Recreational Marijuana: What Every Association Should Know

January 15th, 2019

    The legalization of marijuana in Michigan concurrently provides a framework for its regulation and control. Association boards will be able to look to the Michigan Regulation and Taxation of Marihuana Act (“MRTMA”) (MCL 333.27951 et seq.), and the regulatory scheme that will grow out of it, to craft their own rules about the consumption, cultivation, distribution, processing and sale of marijuana on condominium common elements or subdivision common areas.

    It is easiest to think of the legalization of marijuana under the MRTMA the same way you would think about alcohol or tobacco. The MRTMA allows individuals over the age of 21 to consume and possess small amounts of marijuana. Similar to the consumption and sale of alcohol and cigarettes, marijuana will be heavily regulated.

    If an owner is violating a provision of the MRTMA, they would also be in violation of the typical prohibition on unlawful activity found in an association’s governing documents and enforcement action could be taken by the association. For example, Section 4.1(c) of the MRTMA prohibits, “any person under the age of 21 to possess, consume, purchase or otherwise obtain, cultivate, process, transport, or sell marihuana.” If an individual under the age of 21 was found to be consuming or possessing marijuana on condominium common elements or subdivision common areas, they would likely be in violation of the association’s governing documents and enforcement action could be taken.

    Section 4.1(f) of the MRTMA also prohibits “cultivating marihuana plants if the plants are visible from a public place without the use of binoculars, aircraft, or other optical aids or outside of an enclosed area equipped with locks or other functioning security devices that restrict access to the area.” Owners will only be allowed to grow marijuana in locked areas that are not visible or accessible by third-parties. If an owner violated this provision of the MRTMA, associations could institute an enforcement action.

    Community associations have the ability to regulate the use of marijuana on common elements or common areas within their communities under the MRTMA. Section 4.4 provides, “[t]his act allows a person to prohibit or otherwise regulate the consumption, cultivation, distribution, processing, sale, or display of marihuana and marihuana accessories on property the person owns, occupies, or manages, except that a lease agreement may not prohibit a tenant from lawfully possessing and consuming marihuana by means other than smoking.” “Person” is defined in the MRTMA as an “individual, corporation, limited liability company, partnership of any type, trust, or other legal entity.” This section is particularly important to community associations because an association meets the definition of “person” found in the MRTMA and, therefore, has the ability to prohibit and regulate marijuana on common elements or common areas within their communities. Condominium associations will be able to regulate marijuana use on the condominium’s common elements under the board’s rulemaking authority. Whether a subdivision association will have the ability to regulate marijuana by rule is dependent upon the authority granted in the association’s governing documents. Prohibiting marijuana use in a condominium unit or a subdivision residence can only be accomplished through an amendment to the governing documents approved by the requisite number of owners.

    Regardless of the State’s legalization of marijuana, owners could also be negatively affected by the smell of marijuana being grown or smoked in a neighboring residence. To take legal action for an offensive smell (marijuana, cigarette smoke, odors from uncleanliness, cooking odors, etc.), an association would need to determine that a nuisance exists and its enforcement obligation triggered. To bring a nuisance action, we recommend obtaining an affidavit from at least two (2) affected owners. For example, before filing suit to prohibit an owner from smoking or growing even a legal amount of marijuana, it would be best to have at least two signed affidavits from owners describing how they are negatively affected by the odor produced from the smoking or growing of marijuana in close vicinity to their residences.

    Growing marijuana for use under the MRTMA or Michigan’s Medical Marihuana Act could require a modification to the plumbing or electrical systems, which in the condominium context are both typically common elements that require advance board approval prior to modification. If there is reason to believe that a condominium co-owner has modified the plumbing or electrical systems for marijuana cultivation without approval, the association could request an inspection of their unit and take any relevant enforcement actions. An association could also deny a modification request relating to modifying the electrical or plumbing systems for marijuana cultivation.

    Marijuana is still illegal under federal law, specifically the Controlled Substances Act (“CSA”). However, it is yet to be determined in other states which legalized marijuana if there is a successful case to be made that violation of the CSA constitutes a violation of the prohibition on illegal activity typically present in both condominium and subdivision governing documents. It is well established that states cannot be required to enforce federal law. Therefore, whether or not a court will rule that violating the CSA (a federal law) constitutes a breach of a state law contract (i.e – the association governing documents), may depend upon the individual judge assigned to the case. Furthermore, federal courts have uniformly held that the CSA does not create a right of private action. Associations therefore lack a cause of action with which to proceed to a federal court. This Catch-22 of state versus federal law means that, unless an association is willing to be the test case for such a battle, the association may be better off proceeding under a nuisance theory rather than an illegal acts theory.

    With the legalization of marijuana in Michigan, associations concerned with the growing or use of marijuana should contact appropriate legal counsel to fully understand its rights, responsibilities and potential ways to alleviate the concerns.

    • Benjamin J. Henry is a Michigan Condominium Attorney and an associate at Makower Abbate Guerra Wegner Vollmer PLLC. Mr. Henry focuses his practice primarily in the areas of Michigan Condominium Association and Michigan Homeowner Association law. Mr. Henry is a member of the Real Estate and Litigation sections of the State Bar of Michigan.

    Author

    Benjamin J. Henry
    Benjamin J. Henry

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