Can a Condo Owner Do That? What Community Association Boards Need to Know About Smoking and Cannabis Use in the Building

Among the most commonly asked questions of condo and community association boards often relate to smoking and cannabis use. Howard Dakoff recently spoke at a meeting of the community association property managers at Advantage Management on the rights and limitations of smoking and cannabis use in condo buildings. Below are a few highlights from Howard’s presentation to Advantage Management.

Laws regarding Smoking and Cannabis Use

Generally, condo residents can smoke in the units and common elements, unless smoking is prohibited in the Association’s Declaration By-Laws, or Rules (for common elements). Changes to the Association’s Rules require approval of the condo board, whereas amendments to the Declaration or By-Laws require unit owner approval. 

Although there is generally a right to smoke (unless prohibited in the Association’s governing documents), the “noxious and offensive conduct” provision customarily contained in the Declaration means that condo owners cannot do so in a manner that causes an objective nuisance, such as unreasonable smoke or odor transmission. If a condo owner’s smoking is causing a nuisance, the issue should be documented in writing with independent verification of the issue, where possible.

The Cannabis Regulation and Tax Act, which went into effect January 1, 2020, decriminalizes recreational cannabis use and possession. The law also added a new Section 33 to the Condo Act, which permits the smoking or other consumption of cannabis in condo units and common elements unless the governing documents restrict or prohibit it.

It is important to note that vaping is not the same as smoking. There is a different chemical process involved with vaping and smoking, and Section 33 of the Condo Act says that Associations cannot prohibit the consumption of cannabis within units or limited common elements by means other than smoking (burning or combustion), including the consumption of edibles or “vaping”.

What can Condo Boards do About Smoking Complaints

If the condo board receives complaints about a resident’s smoking, there are some steps the condo board can follow:

• Send a courtesy warning letter to the condo owner.
• After notice and an opportunity for a hearing levy fines for smoking violations.
• If the Rules permit it, require the unit owner to take steps to remediate.
• If drastic steps need to be taken, the condo board can seek mandatory permanent injunctive relief.
• Prohibit smoking in units via an amendment to the Declaration (assuming no such prohibition already exists in the Declaration), which would require approval of the condo owners.

LP is committed to keeping our condo and community association clients informed of and prepared to navigate applicable laws. For questions regarding smoking, cannabis use, or other issues facing your condominium or community association, please contact Howard Dakoff, Laura Marinelli, Adam Kahn, or Molly Mackey of LP’s Community Association Group.