October 13, 2017
Q: I live in California where it is legal to grow six cannabis plants. What can our HOA do about this? — P.F., Newport Beach.
A: As you know, Californians last year passed Proposition 64, which for adults of at least 21 years of age legalizes marijuana for personal use as well as the cultivation of up to six plants in one’s residence. The law took effect at the beginning of this year. However, there is a difference between removing criminal penalties and establishing a right to smoke or grow marijuana. The passage of Prop. 64 removed state criminal sanctions against marijuana in the personal residence but did not establish the use or growth of marijuana as a right.
So, the use of marijuana now joins a long list of activities that are legal but might bother neighbors in an attached housing community. Given the recent change in the law, it is only a matter of time before residents argue Prop. 64 gives them the “right” to smoke marijuana in the association. This is incorrect, and associations can pass rules or use restrictions banning marijuana smoking or marijuana plants in the association.
Regarding cultivating marijuana, some may argue that under the “personal agriculture” protection statute, Civil Code 4750, HOAs cannot prohibit the growing of marijuana in one’s backyard. However, the statute specifically exempts marijuana from the definition of “agriculture” by referencing Civil Code 1940.10, which excludes marijuana from the definition of “personal agriculture.” So, HOAs are not required to allow mini pot farms in their communities.
An increasing number of cities are banning smoking inside attached residential housing (and in other areas), and complaints and disputes are increasing within associations regarding smoking. The issue is the “second-hand smoke” or smell that invades adjacent homes, yards or balconies from a smoker’s unit.
With the advent of “legal” marijuana use in California homes, associations may wish to discuss whether they wish to adopt use restrictions (by a member vote) or rules (by a board vote) to restrict or even ban the smoking and/or growing of marijuana in the community.
If someone suffers from a disability that requires marijuana use, an association will be required by the Fair Housing laws to provide a reasonable accommodation for anyone with a documented need for the drug. However, an association might not be required to allow smoking, given the existence of a number of other options to deliver the medical effects of marijuana. If a resident documents a disability requiring the intake of marijuana, the association should pursue an interactive process (translation: talk to them) to explore if alternatives other than smoking are available to the resident. An accommodation creating a nuisance to neighbors is not “reasonable.” The smell of any smoke is most likely a nuisance if it invades hallways or individual residences.
With changing laws and social conditions, associations need to periodically examine whether the policies in their governing documents meet the current needs of their communities.
Note to readers: CAI’s annual California Legal Forum, a full day of HOA law seminars, will be held Oct. 20, 2017, in Universal City. See caionline.org or contact a local Community Associations Institute Chapter for details.
Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers and Managing Partner of Richardson Harman Ober PC, a California law firm known for community association expertise. Submit questions to KRichardson@RHOpc.com.