Limitations on Smokable Cannabis Use Clause
(Condominium Declaration) (Residential)

Summary

This template for a clause limiting the use of smokable cannabis that may be included in a residential condominium's declaration to prohibit the smoking of cannabis products within the condominium's common elements. This template contains practical guidance and drafting notes. This clause uses the general term "common elements" which prohibits the smoking of cannabis-derived products within any of a condominium's common elements (both general and limited) while allowing this use in individual units as long as the use does not create a nuisance. Where a condominium has both general and limited common elements, determine if smoking will only be prohibited in general common elements and revise this clause accordingly. Many owners consider the limited common elements to be an extension of their unit and may resist restrictions on using such portions of the building as are otherwise permitted in their unit. Limited common elements often consist of outdoor space, such as a terrace or balcony. These locations, by their nature, allow smoke, odors, and vapors to travel. Smoking (of cannabis, tobacco, or other products) in any common element, therefore, has a high likelihood of creating a nuisance to others. Best practice is to consider such factors in determining whether such prohibition will be imposed on all or only a subset of common elements. This determination will be transaction-specific and will necessitate a review of the defined common elements terms within the declaration to ensure the applicable terms are used as and where intended. This clause is intended for use in jurisdictions where the use of cannabis is legal but applicable law does not prohibit condominium associations from regulating it. This type of clause is often included in the section of a condominium declaration that sets out general use restrictions. For a template residential condominium declaration, see Declaration of Grants, Covenants, Conditions, and Restrictions Establishing a Plan for Condominium Ownership. For a template for a clause that prohibits use in individual units as well as within the common elements, see Prohibition on Smokable Cannabis Use Clause (Condominium Declaration) (Residential). Many states have decriminalized 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 decriminalized 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. They do 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 broader sense of the word, particularly as they may directly conflict with federal statutes. • Some jurisdictions have imposed restrictions on the right of a landlord to prohibit marijuana use within the property (many of these do have a carve-out for impermissible use by smoking). As discussed above, marijuana remains an illegal substance pursuant to superseding federal law. Therefore, use of marijuana within the premises may violate the condominium's underlying governing securitization and insurance documents if they prohibit the use of the property for any illegal purpose. It is unclear (a) if a court would uphold such restriction on a landlord's right to prohibit such use on privately owned property and / or (b) if a court would create a parallel restriction on a condominium as it does on a landlord. • Condominium associations and homeowners who smoke (or permit smoking) in their unit have been found liable to individual third parties under the Fair Housing Act (FHA), the Americans with Disabilities Act (ADA), and local laws for creating unhealthy conditions and failing to remediate such conditions as a result of smoke emanation from one unit into another or into the common elements (in addition to trespass, nuisance, and warranty habitability claims). Few studies have been done to determine the effects of second (and third) hand marijuana smoke. It is unclear if a court would conclude that the effects of marijuana smoke are similar to that of tobacco smoke and impute liability in the same manner. There is an additional possibility that disabled residents within the condominium may bring a claim against the condominium that any smoking of cannabis is a violation of their rights under the FHA, ADA, or other applicable state disability or discrimination statute, upon a showing that exposure to such second (or third) hand smoke limits a major life activity and failing to stop such behavior. • Smokers are not a protected class for FHA and ADA purposes. However, some individuals are recommended to use marijuana to treat their disabilities (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). A question that will likely be raised is whether an individual using marijuana as recommended to treat a disability is entitled 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. As a result of these inconsistencies, evolving statutory implementation in individual jurisdictions, and a lack of court decisions in relation to housing ( though there have been decisions in the context of employment), cannabis use in the context of condominiums is an area ripe for litigation. As counsel to a condominium, review state and local law and statutes before advising to proceed with any prohibition. Best practice is to monitor this evolving area of law. 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 use (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 neighbors, it may be a violation of a condominium's loan and insurance documents to permit illegal drug use 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. 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. In addition, many state statutes permitting the use of cannabis specifically exclude the right to use in a public place. Some states extend this prohibition to prohibit cannabis use when minors are present. A condominium association may be tempted to address cannabis use solely through the condominium's rules and regulations, which can typically be amended by a majority vote of the board of managers. By contrast, amending a condominium's declaration and / or bylaws often requires the approval of a supermajority of unit owners. However, any condominium rule prohibiting the use of cannabis in smokable form is more likely to withstand challenge if it is also contained in the governing documents. Sometimes, the same state laws that permit condominiums to restrict cannabis rights also specify that any restriction must be contained in the governing documents. Because cannabis law is evolving quickly, best practice is to carefully review state and local law before restricting use by smokable means. Given the many open issues, a review of recent case law in the state is also recommended. For sample clauses addressing the use of cannabis, see Cannabis Usage Clauses (Condominium Rules and Regulations) (Residential), Cannabis Growth and Cultivation Clauses (Condominium Rules and Regulations) (Residential), and Prohibition 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.