Cannabis Usage Clauses
(Condominium Rules and Regulations) (Residential)

Summary

These cannabis usage clause templates may be included in the rules and regulations of a residential condominium to prohibit or limit the use of cannabis within the condominium. These clauses contain practical guidance and drafting notes. In recent years, many states have legalized the medicinal and / or recreational use of cannabis while, in other states, all cannabis use remains illegal. Currently, marijuana (a smokable form of cannabis) remains a Schedule I drug under the Controlled Substances Act of 1970, and its use is illegal pursuant to federal law. 21 U.S.C. § 812. See DEA Drug Scheduling. Federal law supersedes state law; therefore, even in states that permit either medical or recreational use of marijuana, the use of marijuana remains illegal. However, the federal government does not currently prosecute cannabis use that is permitted under state law and there is no indication this will change in the near future. The words "legalized", "decriminalized", and "permitted" are used interchangeably here and refer generally to a state legalizing, decriminalizing, or permitting usage, as applicable. This word use does not refer to any particular state's usage of legalization or decriminalization legislation (some states have "legalized" marijuana whereas others have "decriminalized" its use). It is not intended to refer to the legality of such use in the more broader sense of the word, particularly as they including as same may directly conflict with federal legality statutes. As of 2025, 46 states and the District of Columbia have permitted some form of the medical use of cannabis, and 27 states and the District of Columbia have legalized some form of recreational cannabis use. The following maps summarize states that offer some form of medical cannabis and states that offer some form of recreational cannabis. The states in blue authorize some form of medical or recreational use, while the states in purple do not authorize any medical or recreational use. Visualization of State Laws on Medical Cannabis Map Visualization of State Laws on Recreational Cannabis Map In those states where cannabis use is decriminalized, condominium boards may nonetheless wish to prohibit or limit its usage (particularly in smokable form) within individual units and / or condominium common spaces. In addition to concerns about the dangers of second- (and third-) hand smoke from marijuana cigarettes and potential nuisance claims from adjoining unit dwellers, it may be a violation of a condominium's loan and insurance documents to permit illegal drug usage on the premises (as noted, marijuana use remains a violation of federal law). Further, damage caused by the use of cannabis may be excluded from coverage under certain insurance policies. Condominium boards can generally regulate legal cannabis use within the condominium. However, the extent of this regulation may be limited by the state's specific law. In addition, if the condominium's governing documents do not already ban general "smoking" in units and / or common areas, it will likely be necessary to amend these documents before banning the smoking of cannabis. This typically requires the approval of a supermajority of unit owners. State cannabis use laws vary greatly. Some state statutes that legalize cannabis use address the private restriction of cannabis while others do not. Some state statutes prohibit the use of cannabis (or, specifically, marijuana) in a smokable form, even if use in other forms is permitted for medicinal or recreational purposes. With regard to the use of cannabis for medicinal purposes, even if state law does not prevent a condominium from limiting its use, there may be an argument that a disabled person is entitled to use it as a reasonable accommodation under the Fair Housing Law (a separate question exists whether a third party can make an accommodation claim to estop otherwise permitted usage which is beyond the scope of this drafting note). A full discussion of such entitlement is beyond the scope of this drafting note; however, a brief discussion follows for clarity of the issues surrounding fair housing laws as related to permitted use of marijuana. Smokers are not a protected class for FHA and ADA purposes. However, some individuals are recommended to use marijuana to treat other disabilities (of note, the use of illegal drugs by itself is expressly disqualified from the disability definition, and the discussion here only applies to the use of marijuana to treat an underlying separate and distinct disability). Where an individual medical marijuana user raises the question of entitlement to use same as a reasonable accommodation, even where the condominium may prohibit such usage, it is likely a condominium would argue that providing such accommodation would act as an undue administrative burden, that such use violates federal law, and that the condominium cannot be obligated to permit an action that is otherwise illegal. In the public housing context and based upon a 2011 Housing and Urban Development memo, it has been determined that a landlord is expressly permitted to prohibit the use of marijuana, to deny a reasonable accommodation request for same, and has the right (but not the obligation) to terminate assistance to residents using same. It is unclear if a court would extend this line of thinking and create parallel rights for a private-sector landlord / condominium association. A broad prohibition on smokable cannabis for medicinal and recreational purposes that does not limit other forms of use may be less vulnerable to challenge on such grounds. As an example, in January 2020, recreational cannabis use became legal in Illinois. When it legalized cannabis use, the Illinois legislature also amended the Illinois Condominium Property Act to provide that condominium boards may prohibit the smoking of cannabis through traditional combustible means, but not other methods of ingesting cannabis (such as through vaping or edibles), in individual units and limited common elements and may also prohibit all cannabis use in the general common elements. 765 Ill. Comp. Stat. Ann. 605/33. The statute specifically refers to banning such use in the condominium's governing documents. Thus, if the condominium's by-laws and declaration do not already ban smoking, the ban cannot be implemented solely through the condominium's rules and regulations. However, even if the board cannot garner enough support to amend these documents, any general condominium rules prohibiting the creation of a nuisance, or noxious odors will still apply to legal cannabis use. These clause templates provide a starting point, but they should be tailored to conform to the board's wishes and the requirements of applicable state law. Because cannabis law is evolving quickly, best practice is to carefully review state and local law before drafting any rules and regulations limiting its use. Given the many open issues, a review of recent case law in the state is also recommended. The use of "their" in the first sentence to refer to the "Owner" is intended to reflect changing normative use with respect to personal pronouns and preferred gender identifiers. Best practice is to reflect gender-neutral construction in condominium documents, where possible, and additionally to include a gender construction saving provision. Whether including this cannabis use clause in a new declaration or as part of a governing document revision (during which time all necessary or desired revisions should be made), review the general use of gendered language and pronouns. For a sample gender construction saving provision, see Declaration of Grants, Covenants, Conditions, and Restrictions Establishing a Plan for Condominium Ownership. For sample clauses addressing the use of cannabis, see Cannabis Growth and Cultivation Clauses (Condominium Rules and Regulations) (Residential), Prohibition on Smokable Cannabis Use Clause (Condominium Declaration) (Residential), and Limitations on Smokable Cannabis Use Clause (Condominium Declaration) (Residential). For sample clauses addressing the growth and cultivation of cannabis, see Limitations on Cannabis Growth and Cultivation Clause (Condominium Declaration) (Residential) and Prohibition on Cannabis Growth and Cultivation Clause (Condominium Declaration) (Residential). For an overview of materials on cannabis, see Cannabis Resource Kit and Cannabis: Guidance for Real Property Owners. For further information on the challenges faced by marijuana-related businesses when renting or purchasing commercial real estate, see State-Legalized Marijuana and Real Estate. For additional information, see Medical and Recreational Marijuana State and Local Law Survey. For nonsmoking clauses, see Non-Smoking Clauses (Condominium Rules and Regulations) (Residential). For sample condominium rules and regulations, see Condominium Rules and Regulations. For a template residential condominium declaration, see Declaration of Grants, Covenants, Conditions, and Restrictions Establishing a Plan for Condominium Ownership. For further guidance on condominium ownership, see Residential Condominium Resource Kit.