Our office often receives questions about whether the Association can prohibit or otherwise restrict the use of marijuana within the community. The answer is a lawyerly one – it depends. It depends on where the Association is seeking to impose the restriction as well as the circumstances for which the marijuana is being used.
The short answer to this question is that an association can adopt regulations prohibiting or restricting the recreational use of marijuana on common area property.
NRS Chapter 678D deals with the recreational use of cannabis. As it pertains to community associations, NRS 678D.510 provides, in relevant part, that:
- The provisions of this chapter [NRS 678D] do not prohibit:
. . .
(c) A person who occupies, owns or controls a privately owned property from prohibiting or otherwise restricting the smoking, cultivation, processing, manufacture, sale, delivery or transfer of cannabis on that property; or
NRS 678D.510.1. Effectively this means an Association can prohibit the recreational use of marijuana on property it owns or controls.
However, NRS Chapter 678D does not address two other questions. First, whether an association can restrict the use of marijuana on balconies or other areas outside the physical unit. Second, whether the use of medical marijuana can be prohibited within an association’s common-area property
- Use on Property the Association Owns or Controls
As to balconies and other areas outside of each individual unit, whether an association can adopt restrictions on the use of recreational marijuana depends on who owns or controls the property. To make this determination, each association must review its governing documents to determine whether the property in question is either owned or controlled by the association. If so, a reasonable rule prohibiting the use of recreational marijuana can be adopted.
- Use of Medical Marijuana
Looking at the use of medical marijuana, creates a much more complicated issue. NRS 678D.510.2 states that “[n]othing in the provisions of this chapter shall be construed as in any manner affecting the provisions of chapter 678C of NRS relating to the medical use of cannabis.’ NRS 678D.510.2. Therefore, the provisions regarding the recreational / adult use of marijuana do not affect the medical use of marijuana and other cannabis products.
Given the common area is owned by the association, it would flow that the association can prohibit the use of cannabis, including the medical use, within its property. However, NRS Chapter 678C regulating the medical use of cannabis does not contain the same provision allowing one who has private ownership or control over the property to preclude or restrict its use. This is an untested question within the state of Nevada and one that likely need not be raised.
A blanket prohibition against medical cannabis would likely create unnecessary legal challenges and potential liabilities for the association and/or its board of directors. For example, a prohibition on the use of medical marijuana does not take in to account that cannabis can be purchased in multiple forms and consumed in different manners. Claims of discrimination might be raised if a blanket prohibition is put in to place. Products such as edibles and drops contain cannabis and are readily available for purchase and consumption for both recreational and medical uses. It is, however, worth noting that at least one court has determined that the Fair Housing Act (“FHAct”) does not protect the use of medical marijuana as the FHAct expressly excludes illegal drug use and marijuana remains illegal under Federal law. Assenberg v. Anacortes Hous. Auth., 268 F. App’x 643 (9th Cir. 2008).
To avoid legal challenges, associations seeking to regulate the use of marijuana within the common area property should consider adopting carefully crafted nuisance and smoke rules that do not ban the use of medical marijuana altogether. If the use of marijuana is an issue for your community, we recommend consulting with your community’s attorney to review the association’s governing documents and develop rules which appropriately restrict the use of marijuana. For further information, you can contact Troy Isaacson at (702) 529-2559 or at Troy@IsaacsonLawLV.com.