Beginning January 1, 2020, adults 21 years of age and older will be able to purchase and possess up to 30 grams of marijuana for recreational use. To avoid issues and keep the peace, Illinois condominium associations will want to get rules and regulations in place before then.
Each city can determine for itself if they will or will not allow recreational marijuana sales. Additionally, cities can determine what limits they’ll place on the growth of recreational marijuana business. So, they can limit where dispensaries may be located, how many, etc. Some cities are still deciding, but ABC 7 reported that Naperville will only allow medical marijuana sales, Oak Park and Darien will allow recreational sales, and Grayslake and Lake Zurich will not allow recreational marijuana sales at this time.
We interviewed Benjamin Rooney, an attorney at Costello Sury & Rooney, P.C., about how this new law affects condominium associations. He says the law specifically allows condominium associations to limit or prohibit the consumption of marijuana in common elements by simply adopting a rule, voted on by the board. In addition, he states,
Condominium associations can also prohibit or limit the smoking of marijuana within an owner’s unit, however this must be accomplished through an owner-adopted amendment to the Declaration.
What issues may arise
We can guess that some owners will get very upset with the smell of marijuana smoke. You may have dealt with this already when Illinois legalized medical marijuana. Condo owners may complain of marijuana smoking similar previous concerns of cigarette smoking. Specifically, issues of smell, second hand smoke, and fire hazard are likely. Association boards will no longer be able to stop marijuana consumption solely because it is illegal. In fact, a board should only call the police in the event an occupant or guest is violating a law. So, after January 1, 2020, this will be less often. Even if your board has amended a declaration to prohibit recreational marijuana use, it will no longer be a criminal matter.
Ben Rooney points out the good news that the recreational marijuana legislature allows associations to prohibit smoking within a unit, provided it is approved by the owners. Consequently, you will want to plan ahead to be ready to prevent and handle issues.
If enough owners agree to amend the Declaration, you are well on your way to prevention. Without an amendment, however, you’ll need to rely on the general prohibition against noxious activity. Just as some cities are holding a public forum to get viewpoints on selling recreational marijuana so they may move toward an amenable decision, condominium associations may hold an open forum discussion in advance of January.
Legally, new laws present unknown territory, but Ben believes that the new law would allow an association to distinguish between smoking and vaping in their rules and regulations. This may be one solution to consider if it doesn’t feel right for your association to prohibit marijuana consumption completely. You may want to involve your attorney in spelling out this distinction. The language and enforcement must not be arbitrary. But, Ben believes associations can accomplish this since vaping eliminates the fire and second-hand smoke concerns. In addition, it reduces odor to be very minimal so it does not travel or “stick” in the walls.
Alternatively, consider handling marijuana like you do smoking. Either way, you’ll want to spell out in your amendment what the association allows in both common elements as well as owners’ units.
How to enforce
Once you’ve amended your Declaration, follow your current paths to enforcing rules. In the event of a violation, follow your warnings and fines schedule. If the violating person is a tenant, the association can pursue eviction. However, if you have an owner repeatedly violating the rule and the fines are not eliminating the issue, the association can consider filing a lawsuit seeking a court order that prohibits the owner from violating the covenant. That means if they continue to violate the rule, the can be held in contempt of court.