EXPERT COLUMN: Legal marijuana affects community associations

Nevada residents are still sorting out the details of legalized recreational marijuana smoking, but one thing remains clear: You don’t have to put up with pot-smoking neighbors who make nuisances of themselves.

Voters in the state opted to legalize the recreational use of cannabis by ballot initiative in 2016, and the recreational market for marijuana officially opened with retail pot shops last July. The new rules for marijuana use by adults, however, certainly do not give carte blanche to pot smokers — at least according to the governing documents of many homeowners associations.

In other words, pot smoking may now be legal in the state, but neighbors retain the right to enforce limitations on it within community associations.

As more and more Nevadans live in closer and closer proximity to one another because of smaller home lots, apartments, condominiums and high-rise homes, it’s easier than ever to unintentionally intrude on the rights of others through activities like smoking. Just because Nevada officials changed the law to allow recreational marijuana use, it did not mean neighbors lost their right to a smoke-free environment.

Residents living in condominiums and high-rises are among those most likely to find themselves in a cloud of unwanted smoke. In many cases, though, existing regulations are enough to stop the practice if it becomes an ongoing nuisance.

In short, it is not open season with respect to marijuana smoke in community associations. A lot of people think that just because it’s legal to smoke marijuana in Nevada, they can smoke it wherever they want to, whenever they want to.

But homeowners associations, particularly those whose governing documents were written in the 1990s or later, routinely lay out smoking and nonsmoking areas and spell out controls. Those restrictions were originally written to apply to tobacco, but they can be used just as effectively against nuisance marijuana smoke.

Even in older communities where association governing documents were drafted several decades ago, rules addressing unlawful behavior or nuisances could come into play.

A lot of association governing documents prohibit anything that’s unlawful. In Nevada, it is still unlawful to expose others to marijuana smoke publicly, so you’re going to have that general restriction that’s going to prohibit them from doing that. Most governing documents have nuisance restrictions, and in a lot of situations, marijuana smoke may constitute a nuisance. It may depend upon how much smoke is getting through, who’s being affected by it and how they’re being affected.

Adam H. Clarkson, Esq., is the owner/principal of The Clarkson Law Group, P.C., which has offices in Las Vegas, Reno and San Francisco. His practice is dedicated to homeowners associations. Clarkson is the president of the Community Associations Institute (CAI), Nevada Chapter. He is a member of the CAI Bay Area and Central California Chapter; CACM; CAMEO; NACM; the Nevada Trial Lawyers Association; and the State Bar of Nevada’s Real Property Common Interest Community Sub-Section.

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