Legal Advice for Apartment Boards Dealing with Marijuana Smoke and Odors

The legalization of recreational marijuana is creating a growing headache for boards as more residents are up in arms about odors and secondhand smoke. Boards need to know how to deal with the problem effectively.

Ingrid Manevitz

Partner,Seyfarth Shaw

Up in smoke. Whether a building prohibits smoking in apartments or not, as soon as it negatively impacts other residents, it’s a nuisance, and boards have to tackle it promptly. The first thing to do is investigate and verify the complaints, ideally by having a staffer or super try to identify where the smoke and odor are coming from. That person or the board can then speak to the people in the surrounding apartments and ask them to keep records of when the problem occurs.

Repeat offenders. If you ask someone to stop smoking or correct the problem and they don’t, the board could decide to go to court to seek an injunction restraining the resident from continuing to smoke in the apartment. If the resident doesn’t abide by that ruling, you would then seek to hold them in contempt of court, which could come with fines and even imprisonment.

Financial penalties. Of course, you don’t want to escalate to legal action if you can avoid it by imposing monetary fines. Boards have the authority to impose fines as long as that is specified in the proprietary lease; in condos, that authority needs to be in the bylaws. At some buildings there is just loose language about what the fine amount can be, and at others it’s very specific. Either way, you want that authority. A lot of boards we represent have amended their documents to give them that power. So if you don’t have that language in there, it’s something that should be added.