By Scott Reidenbach, for Elevated Nation
With the signature of Governor Tom Wolf of the Medical Marijuana Act in the spring of 2016, the Commonwealth of Pennsylvania joined 27 other states and the District of Columbia in authorizing the sale of cannabis for medicinal purposes.
Qualifying patients may be able to gain access to marijuana-based medication as soon as early 2018. So, what impact will the Act have on condominium and homeowners’ associations?
Potential Rental and Sale Opportunity
If a medical marijuana business does open in your neighborhood, this may provide an opportunity for increased rentals or sales within your community. Your units may be attractive to patients looking to rent or buy a home that provides easy access to the source of their medication. Additionally, owners and employees working at the dispensaries and growing/processing facilities will need places to live. There is evidence from other jurisdictions that have legalized medical marijuana that neighborhoods containing dispensaries have seen a greater increase in real estate prices than neighborhoods without those facilities.
A common concern for associations is the nuisance caused by the odor emitted from the use of marijuana. Smoking of any kind is typically frowned upon, if not outright prohibited, in most common interest communities today. Some associations may be wary that the legalization of medical marijuana will permit residents and/or their guests the right to smoke cannabis within the community. However, the Act in its current form does not permit the smoking of cannabis. Medical marijuana may only be dispensed in the form of a pill, oil, tincture or liquid; or alternatively in a topical form, such as a gel, cream or ointment; or in a form medically appropriate for vaporization or nebulization. As such, it is far less likely to cause any substantial and unreasonable interference with other’s enjoyment of their property.
To what extent can a community declare a total ban on marijuana in units or the common elements? A move to ban marijuana use within units will likely be challenged as an interference of individual privacy rights. The banning of consumption in the common elements may be challenged as a violation of the fair housing law. A unit owner/occupant’s medical condition, for which marijuana is prescribed, may also qualify as a disability. If so, the use of medical marijuana may have to be permitted on the basis of reasonable accommodation under state nondiscrimination laws.
Can a community characterize the consumption of medical marijuana as an “illegal activity” prohibited under statute? In this regard, there has been no clear direction from the courts. All indications show that the federal government will not push to enforce the federal law. It seems fair to assume, therefore, the courts will follow suit and will not find a cause of action on the grounds that this is a bad act posing serious harm or injury to the dwellers of the community.
May associations require that potential tenants and other occupants disclose in their applications that they have been prescribed medical marijuana by their primary physician? Are existing residents required to inform the associations if they become patients who are prescribed medical marijuana? The Act states that the names and other identifying information of the patients must be kept confidential and will not be part of any public disclosure under the Pennsylvania Right-to-Know Law. Therefore, a mandated disclosure to the association might violate the Act.
Reidenbach & Associates, LLC is a Main Line-based law firm that concentrates its practice in the areas of Real Estate, Condominium and Community Association Law, Business and Civil Litigation. Founded in 2007, the firm provides innovative and strategic representation to planned communities, individuals, professionals, non-profits and small, privately-held businesses.