Do you have to put up with the smoke and smell from marijuana? The simple answer is NO.
Possession and use of marijuana is now legal in California stemming from the passage of Proposition 64. That brings the total number of states where recreational use is legal to seven. That does NOT mean that your HOA property owner can smoke it and blow the noxious smoke into another unit’s area.
Virtually every homeowners association has HOA rules in the Governing Documents to prohibit activities which are a nuisance to residents within the HOA. The Association should have a formal smoking policy with all the details as to whether - or where - smoking is allowed. Those rules can specifically restrict smoking (i.e. cigarettes, cigars, pipes, and perhaps even vaporizers, etc.) in common areas, and inside rental units, balconies or patio areas.
What this law does not do
Proposition 64 does not permit persons to “smoke marijuana or marijuana products in a location where smoking tobacco is prohibited.” Marijuana smoke can waft from one residence to another through open windows or heating units. So if your homeowners association restricts outdoor smoking, the use of marijuana may be treated the same as other smoking products. The issue is whether smoking inside a unit can be governed by the HOA rules. Would a court agree that it rises to a level of nuisance? Unknown.
What about growing the medicinal plant?
The outdoor cultivation of marijuana has been banned in many counties (check with your health department to verify). However, indoor growing of up to 6 plants is still permitted in many areas. Instances in which the smell from marijuana plants and blooms is so strong they rise to the level of a nuisance, would be prohibited in most CC&Rs and therefore might be restricted on those grounds.
What about reasonable accommodations for medical conditions relieved by marijuana use?
The issue here isn’t banning marijuana itself, but the byproduct – smoke. Consuming marijuana by eating it, using vaporizers, and even a pill form would most likely not violate any HOA rules. These alternatives are available to those that have the need to use it without affecting their neighbors. Always consult legal counsel for guidance on issues such as these.
Ultimately, if the use and enjoyment of a HOA member’s home is being affected by another person’s marijuana use, suggest they write a formal complaint to the Board of Directors, and document all the complaints. There are options for owners to get these complaints resolved, breathe easy, and still live harmoniously with their neighbors. If your homeowners association does not have a smoking policy in the HOA rules, it might be a good time to be pro-active and create one.