What made marijuana use in California legal?

Proposal 64, which was passed in 2016, legalized the adult possession and use of marijuana in the state of California.

Can HOAs restrict smoking marijuana?

Through provisions in the governing document that prohibits activities that prove to be a nuisance to other homeowners, HOAs can restrict marijuana. Having valid and enforceable HOA restrictions against tobacco smoking may still be used to restrict marijuana smoking as well.

Does the law let HOAs restrict marijuana cultivation

A more complicated topic, earlier Civil Code provisions were clear that marijuana was not a crop considered allowable for personal agriculture. However, Prop 64 appears to have muddied this issue as it has provisions that allow cultivation of cannabis in an adult person’s personal property..

Can the HOA restrict growing cannabis?

For the common areas it handles, the HOA can easily choose to restrict to grow the plant or not. However, for weed rules imposed on residents, this would depend on where the HOA is located as counties and cities were provided the power to restrict or allow the cultivation of marijuana.

How can HOAs create a balance set of guidelines for marijuana use?

HOAs can work with legal counsel to craft rules that balances both homeowner concerns and the provisions of the law.

HOA Weed Rules: Can HOAs Restrict Marijuana Use?

What Does Legalized Marijuana Mean for Your HOA

In California, the adult possession and marijuana use has been legal since 2016. But is it still possible to restrict it within an HOA community? To what extent can HOA weed rules be implemented in a community that balances the rights of its residents?

What is the Legality of Marijuana Use in California?

Adult possession and use of marijuana for recreational purposes became legal in California after the state passed Proposition 64 (“Prop 64”) in 2016. This proposition includes (62) pages of detailed, complicated, and at times confusing regulations and statutory revisions to various California codes.

Legalized Marijuana in HOA: Handling Complaints

When handling a divisive topic such as legalized marijuana, HOAs need to perform a balancing act. They need to consider the letter of the law as well as their residents’ rights.

On one hand, there are residents who are bothered by marijuana use. These people may complain about the odors and fumes the activity results in. As much as possible, HOAs want to avoid liability. To do so, they need to always hear the complaints of residents regarding the smell and smoke from cannabis smoking.

On the other hand, there are people who use marijuana medically. When HOA weed rules are in place, they may request reasonable accommodations under the Fair Housing Act.

Fortunately, regulating the smoking of cannabis may be easier to handle. Cultivation, on the other hand, may prove to be a more difficult topic.

In order to hopefully solve this balancing act, HOAs need to be proactive and work with their legal counsel. They need to ensure that the rules they enforce are within their authority according to the law.

HOA Weed Rules: Smoking Marijuana in HOAs

Are there HOA smoking rules that California law blocks?

Most HOAs include a provision in their governing documents that prohibits activities that serve as a nuisance to residents within the community. Those provisions include the transmission of “noxious odors”. Many associations have relied on these provisions to restrict smoking (i.e., cigarettes, pipes, cigars, vaporizers, etc.) in common areas and, in some instances, within properties owned by each member.

Fortunately, Prop 64 didn’t alter the HOA’s regulatory authority with respect to the smoking of marijuana.

Section 4.6 of Prop 64 (adding Section 11362.3 to the California Health & Safety Code) provides in relevant part that nothing in the statute permitting personal use, possession, cultivation, etc. of marijuana shall be construed to permit any person to “[s]moke marijuana or marijuana products in a location where smoking tobacco is prohibited.”

Given this. Having valid and enforceable HOA restrictions against tobacco smoking may still be used to restrict marijuana smoking as well. Notably, the term “smoke” as used in Prop 64 also includes the use of electronic smoking devices and vaporizers.

HOA Weed Rules: Growing Marijuana in HOA

One of the more interesting issues HOAs may encounter following Prop 64 is the growing or “cultivation” of marijuana plants.

In 2015, new Civil Code § 4750 was enacted to grant homeowners within HOAs the right to use their backyards for “personal agriculture.”

However, Civil Code § 1940.10 was enacted at the same time to clarify that “personal agriculture” as used in Section 4750 means the use of land where an individual cultivates “edible plant crops for personal use or donation.” It also clarified that the term “plant crop” does not include “marijuana or any unlawful crops or substances.” Because of this, before Prop 64’s passage, an HOA’s marijuana cultivation restrictions were relatively clear.

Prop 64’s Effect on HOAs’ Authority for Growing Marijuana

Prop 64 appears to have muddied this issue. It added Section 11362.1 to the Health & Safety Code which provides in relevant part that, “notwithstanding any other provision of law,” it is lawful for persons 21 years of age or older to “[p]ossess, plant, cultivate, harvest, dry or process not more than six living marijuana plants.”

Some may interpret this language as overriding the Civil Code’s restrictions on the type of “personal agriculture” which may be cultivated in a homeowner’s backyard—especially in light of the fact that marijuana is technically no longer an “unlawful crop or substance.”

Prop 64 also added Section 11362.2 to the Health & Safety Code to allow for restrictions to be imposed on the outdoor cultivation of cannabis. It provides in relevant part that a “city or county” may “enact and enforce reasonable regulations” on the cultivation of marijuana. However, this can only be done if such regulations may not be used to completely prohibit the cultivation of marijuana “inside a private residence, or inside an accessory structure to a private residence located upon the grounds of a private residence that is fully enclosed and secure.”

This language appears to empower only cities or counties to prohibit outdoor cannabis cultivation. It never adequately addresses whether these prohibitions may also be enacted and enforced by HOAs.

What Can the HOA Do?

Prop 64 does say that the rights to cultivate marijuana do not preempt the “ability of an individual or private entity to prohibit or restrict…[the cultivation of marijuana]…on the individuals’ or entity’s privately owned property.” Therefore, the HOA’s ability to restrict the cultivation of marijuana on its “privately owned property” or its common areas is relatively clear.

However, it remains unclear whether an HOA in a city or county without restrictions on outdoor marijuana cultivation has the right to impose HOA weed rules on homeowners. Simply put, its authority to prohibit the outdoor growing of marijuana will depend on local laws governing the community.

When drafting HOA weed rules regarding cultivation, the best thing an association can do is seek legal counsel. This would ensure that the guidelines you have in place abide by the law.

A Tough Balancing Act

When it comes to guidelines involving contentious issues, including marijuana use, HOAs need to place themselves in the middle. They need to hear all parties involved to find the right regulatory solutions that abide by the law. It may be tough, but it’s necessary to maintain a high quality of living for everyone in the community.

Optimum Property Management offers expert property management services for communities in Orange County and the Inland Empire region.

Call us today at (714) 508-9070 or contact us today.
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