Cannabis and Condominium Living

With the passage of the Cannabis Regulation and Tax Act (the “Act”), which makes the recreational use of marijuana legal in Illinois beginning January 1, 2020, condominium dwellers across the state are faced with the potential of having further regulations added to those already imposed by the State of Illinois. The Act prohibits consumption of cannabis in any public place, which is defined as any place where a person could reasonably be expected to be observed by others, but excludes private residences.

Therein lies the rub. Condominium units, whether owned or rented, are certainly considered private residences, but condominium dwellers may face an added restriction. Condominium associations may prohibit or limit the smoking of cannabis within a unit and/or on the limited common elements or common elements of the condominium. Such a ban could be put in place with the consent and approval of a majority of the unit owners. In most cases, this would mean that 2/3 to 3/4 of the unit owners, depending on the association’s governing documents, would have to approve such a ban. A rule or regulation put in place by the association’s Board of Directors would not be sufficient to create such a ban, absent the required approval by the unit owners.

Condominium associations may be concerned about the wafting of smoke and odors within their buildings, but unless there is a ban in place, their remedies are few. It can be anticipated that the pungent odor of marijuana being smoked may be regarded as a nuisance, and may be addressed as such according to the governing documents of that particular association.

The use of edible cannabis products, pills, capsules, tinctures, balms, oils or body creams is not, however, considered ‘smoking’ and, as such, would fall outside any ban placed on the smoking of cannabis. A condominium association may restrict all forms of consumption of marijuana on the common elements, but may not restrict the consumption by any means other than smoking, within a unit or the limited common elements.

These bans that may be put in place by a condominium association do not, however, apply to properly obtained medical marijuana. Again, the odors associated with medical marijuana can be regarded as a nuisance, and mitigation of the nuisance, such as the use of an air filtration system or additional caulking around windows and doors, may be required.

When we ring in the New Year, Illinois residents will be able to lawfully enjoy the recreational use of marijuana, but those who live in condominiums may face some unexpected restrictions. If you live in a condominium, it is imperative that you are familiar with the current Declaration and By-Laws, and be sure to pay special attention to any movement in place to change your governing documents to restrict the consumption of cannabis.

For more information on this topic, or for any other condominium related issues, please contact Patti Levinson at Lavelle Law at (224) 836-6186 or plevinson@lavellelaw.com.