Marijuana and HOAs – What Can HOAs Do?

Odors from marijuana have now come to the forefront.  Not just from smoking, but from cultivation.

For many attached home communities, the issue is no longer theoretical, it’s practical. Smoke from marijuana use and odor from marijuana cultivation is objectionable to most, except those using marijuana.

This article reviews what HOAs can and should do.

The Colorado constitution allows for and envisions a regulated industry to supply and sell marijuana much like the industry that supplies and sells alcohol.

Marijuana continues to be illegal under federal law for all purposes.

Personal Use of Marijuana is allowed under the Colorado Constitution

Possessing, growing, using, consuming, processing, displaying, purchasing, or transporting one ounce of marijuana by an adult (age 21 and older) is legal in Colorado.

These rights extend to growing 6 plants, 3 of which can be flowering.

If the adult is a caregiver to other medical marijuana users, this same adult can grow another 6 plants for each of those persons, 3 of which can be flowering.  There is no state constitutional or state law limit on the number of plants one person can grow, as a proxy, for medical marijuana patients.

If an adult is registered as medical marijuana user, that adult can possess up to 12 plants, 6 of which can be flowering.

Regulation of Marijuana is also allowed under the Colorado Constitution

HOAs have authority under the state constitution over marijuana. The applicable clauses relate to entities (i.e., HOAs) that “occupy, own or control property.”

HOA authority to regulation marijuana may also come from the common interest community’s governing documents – check the documents.

HOA authority to regulate marijuana also comes from case law.  While there is no specific case law in Colorado, it is anticipated that the State Supreme Court would rule that owners’ claims that an HOA’s actions violated rights protected by the Colorado Constitution (i.e. the right to use and cultivate marijuana) would be denied.  The constitutional rights of adults to use marijuana in Colorado are protected from government regulation, not from private, i.e., HOA, regulation.

What are the rights of owners and residents in Colorado?

The rights of owners and residents in Colorado common interest communities are principally addressed in Colorado statutes and in the governing documents for a community, not in the State Constitution.

The primary statute addressing owner rights is the Colorado Common Interest Ownership Act.  Some owner rights and responsibilities are addressed in the Colorado Revised Nonprofit Corporation Act.

State law requires some indoor areas to be smoke-free.

Colorado’s Clean Indoor Air Act:  3/27/06, prohibits smoking (of any kind) in many places, but not inside a home.
Relevant to HOAs, this act applies to common elements of condominiums and other multiple-unit residential buildings (like attached townhomes or patio homes).

Based on this act, smoking is prohibited in HOA common restrooms, lobbies, hallways, clubhouses, mailrooms, pool locker rooms or other enclosed, shared areas, like ‘entryways’ (“outside of the front or main doorway leading” into the restroom, lobby, hallway and so on).

A violation of this act is a class 2 petty offense, subject to fines by the state.  Each day of a continuing violation is deemed a separate violation.

Enforcement of the State Constitution and State Legislation on Marijuana

The state constitution and the legislation passed under it allow state and local governments enforcement rights on marijuana regulation.  Yet, HOAs anticipate lax enforcement by state and local governments.

It is up to the HOAs to regulate marijuana odors in common interest communities.   Use could also be regulated by HOAs, but probably should not be, due to practical limitations of enforcement by HOAs.

What about a covenant restricting use of marijuana?  

Use of marijuana can be restricted by covenant; just like alcohol uses were once restricted by covenants.

Yet, most HOAs do not have an existing covenant restricting marijuana use.

If desired to be added, just like alcohol restrictive covenants, restrictions on use within a home should be carefully considered before being sought for adoption.  Why?  What residents do inside homes is generally, socially and politically not the focus of an HOA, the covenants or regulation.

While a covenant restricting use is legally possible, it also may not be adopted by the owners.  If adopted, it will be difficult to enforce.

So – What should HOAs do?

If the community includes attached walls between homes, and odors are issues for residents, the HOA should consider rules restricting cultivation (due to the odor, 24-7, over 365 days).

HOA rules should require compliance with the state constitution, state law, local ordinances and requirements of the HOA for:

  • Number of plants (which can be limited)
  • Odor ventilation
  • Light ventilation
  • Light pollution
  • Moisture mitigation

If smoke odors are objectionable in an attached home community, rules on smoking should be considered.

For communities without attached walls, and odors are an issue, consider similar rules to those reviewed above.

For common areas/common elements, HOAs should adopt “no smoking” rules and rules against other use of marijuana (by vaporization, edibles, etc.) in these areas.

Recommendations on New Covenants or Rules as HOA may consider

The following are general recommendations on any new covenants or rules an HOA may be considering:

  • Reasonableness Requirement.  The new covenant or rule must be reasonable.
  • Consistent with Other Laws.  The new covenant or rule must be consistent with applicable federal, state and local statutes.
  • Consistent with the Governing Documents.  The new covenant or rule must be consistent with the community’s governing documents (i.e., cannot prohibit what the declaration or covenants permit and vice versa).
  • Related to Purpose of the HOA.  The new covenant or rule must reasonably relate to the operation and purpose of the HOA.
  • Fair.  The new covenant or rule must be fair.  It should not create a separate class or group of owners, residents or occupants.
  • Clarity.  The new covenant or rule should be clear and unambiguous.
  • Uniformly Enforced.  The new covenant or rule must be uniformly enforced – this means there must be no selective enforcement or exceptions (i.e., a new covenant or rule must be enforced against all owners, not just owners who are delinquent in payment of assessments).

FAQ’s on Marijuana and HOAs

Question Answer Discussion
Can odors from growing marijuana plants be restricted by HOAs? Yes This is relevant for attached homes and is also recommended, with adequate venting and appropriate electrical use required.   Odor from growing plants can be offensive and will transmit through walls.
Can HOAs restrict growing operations as a secondary home business? Yes Residents, particularly in attached home communities, can and should be restricted from commercial growing operations or growing operations for others, with only personal use growth allowed, if adequate ventilation and appropriate electrical use are addressed.
If personal use growth is allowed, should it be regulated? Yes Odor elimination devices should be required.   Electrical use will be expensive.   If common, that expense should be addressed. Compliance with state and local law should be required.
Can HOAs ban smoking of marijuana and other uses of marijuana in the privacy of a home in an HOA?

Yes on smoking bans

This is most relevant for attached homes, where smoke may enter other homes. HOAs should proceed to balance interests and preserve value. Prohibitions on smoking of marijuana, or other products, by a new restrictive covenant, will be best vs. a ban by rule. But balance the interest of the residents is VIP and practical enforcement limitations should also be considered.

A rule on what happens inside a home will be difficult to enforce.

Rules restricting odors from a home will be easier to enforce, and are recommended for HOAs with attached homes.

Can an adult smoke pot in the condo building, HOA lobby, at the HOA pool or clubhouse? No Amendment 64, itself, restricts consumption that is conducted openly and publicly or in a manner that endangers others. Yet, who enforce that law? Colorado’s Indoor Clean Air Act also applies and restricts smoking in indoor lobbies, pools, clubhouses, etc. of HOAs. HOAs can restrict smoking of marijuana, as well as other smoking, in the indoor lobby, pool and clubhouse.
Should HOAs seek to add specific covenants banning use of marijuana? TBD This is a decision to be made by the community (presumably a community with attached homes). For example, consider whether banning personal consumption of fermented beverages (alcohol) by a covenant amendment would be appropriate in a community.
Can residential HOAs and those that allow for mixed uses (commercial, retail and residential) ban marijuana shops and commercial cultivation? Yes These restrictions are expressly allowed under the state constitution.
How much pot or plants can an adult possess in Colorado? 6-12 Adults age 21 and older can possess up to an ounce of marijuana and grow up to 6 plants privately, 12 if they are registered as a medical marijuana user. 6 plants, 3 of which can be flowering, may be grown by an adult for an unlimited number of medical marijuana patients.

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