Unintended consequences are always the bugbear of new rules. So is the case with the commonwealth’s Medical Marijuana Law, officially titled Mass. Statute, Chapter 469 of the Acts of 2012.
Clocking in with a 63 percent aye vote in November 2012, the law to legalize marijuana possession by patients with debilitating conditions such as HIV, multiple sclerosis and Hepatitis C became effective January 1 of this year. Massachusetts patients with physicians’ authorizations are allowed to possess and use 10 ounces or more of marijuana per month. The law doesn’t confer a right or privilege on any person to possess marijuana – it merely permits prescribing or use for medical purposes under state law. But federal law still considers possession of any amount of marijuana a felony, throwing residential property owners and rental property building managers into a dilemma.
And it’s not only the legal aspects of the conflict that pose a problem – it’s the everyday concerns of residents. If property managers thought that secondhand tobacco smoke was a headache, secondhand marijuana smoke presents a worse dilemma.
The state law does not address the impact on other residents of multi-unit buildings, whether condominiums or rentals, regarding secondhand smoke. It sets the stage for potential resident/tenant lawsuits invoking the Americans with Disabilities Act and the Massachusetts Commission Against Discrimination, brought by patients who seek to invoke their rights under state law.
The Department of Public Health Department was given 120 days after the effective date to draw up rules for implementing medical marijuana. On April 19, just about the same time as public hearings on the issue were to be held and/or concluded, the Massachusetts Association of Realtors and the Greater Boston Real Estate Board issued a statement to the Department of Public Health proposing an amendment to DPH Draft Regulations 105 CMR 725.000.
Attorneys Clive Martin, counsel at Robinson & Cole LLP, and Diane Ruth Rubin, partner at Prince Lobel Tye LLP, are co-chairs of the Condominium Law and Practice Committee of the Real Estate Bar Association. They say the law as written focuses mainly on the regulation of dispensaries, and does not address housing and employment elements. What right does a condominium association or building management have when faced by a resident presenting themselves as a qualified user – or a commercial building property owner housing a medical marijuana dispensary?
Unstoppable Force V. Immovable Object
Martin notes that – while many condominiums are smoke free in common areas, some have become smoke-free throughout the building, including private spaces. If someone who is bona fide entitled to smoke marijuana and neighbors claim that it’s affecting their health, it’s an example of the unstoppable force versus the immovable object, he says.
Rubin says most condo rules state that unit owners can’t do anything illegal, which would fall under the purview of federal law.
Possible solutions could include finding interim measures to mitigate effects on neighboring residents, such as alternative smokeless delivery methods including ingesting cannabis in food, or through a tincture of cannabis in liquid. Martin says the situation may become a balancing act in which residents may use marijuana, but not in a way that affects condo co-owners.
If a condo association decides to take a hard line on medical marijuana use, the management could fall back on invoking federal law as a premise of fining the resident and placing a lien on the unit to collect the fine. Condominium owners are subject to the master deeds and bylaws of the condo association, unlike the rules governing public housing. “Each association will want to figure it out on their own. They won’t want any government agency to legislate to them,” Rubin says.
These sorts of disputes may percolate up to the MCAD, because somebody’s going to present themselves as being discriminated against as handicapped or disabled.
Assume you’re in a condo building that has outlawed smoking and someone smokes., Martin says. The condo association fines them, and fines accumulate and person doesn’t pay them. Those fines can become a lien on the unit, asserted by lawsuit. The situation is already common in the case of unpaid common area charges. Rubin says condo owners cannot refuse to pay – they must pay and then dispute the amount paid, bringing their own action, most likely through the MCAD.
A statement sent to the Massachusetts Department of Public Health on April 19, co-authored by the Massachusetts Association of Realtors and the Greater Boston Real Estate Board, calls for the addition of a clause stating that property owners are not required to permit the possession, use or cultivation of marijuana on their properties, and that those offering property for sale or rent be able to state that medical marijuana use is restricted or prohibited. It also calls for the addition of a clause stating that property owners or agents be allowed to disclose the possession or use or cultivation of medical marijuana to tenants visitors and unit owners, as well as to prospective tenants and/or buyers.
Without clarification, the two associations stated, real estate licensees, landlords and condo associations who advertise and show property as “no-smoking” may be at risk for discriminatory advertisements.
Email: coneill@thewarrengroup.com
