The HOA Community and Pot

Is your HOA having any problems regarding community residence smoking pot?  Well, below is an article from the Newsletter by ADAMS | STIRLING PLC with helpful advice for the HOA board regarding marijuana.

Can your HOA prohibit marijuana (a.k.a. pot, weed)?

QUESTION: With the recent passage of Proposition 64, can homeowner associations prohibit residents and guests from smoking marijuana in the development?

ANSWER: Yes, you can. It can be done by (i) adopting a rule relying on existing nuisance provisions in your CC&Rs or (ii) amending your CC&Rs to specifically prohibit smoking of any kind.

A Nuisance. The right of associations to prohibit smoking tobacco is well established. Second-hand cigarette and marijuana smoke are both on California’s Proposition 65 list of carcinogens (cancer causing substances). As such, the smoking of either product is a health hazard and constitutes a nuisance. The definition of nuisance includes “[a]nything which is injurious to health….” (Civ. Code §3479.)

Health & Safety Code. H&S Code §11362.3 specifically states that the statute cannot be construed to permit any person to smoke cannabis in a location where smoking tobacco is prohibited. Therefore, if an association prohibits smoking, marijuana is included.

RECOMMENDATION: When we restate CC&Rs for associations, we offer the option of prohibiting smoking in the common areas that includes vaping, tobacco, marijuana, or any other substance. Many associations are extending the prohibition to the entire development, including inside condominium units. Contact if your association wants to amend its governing documents.

For more knowledgeable information regarding the business of HOA’s, visit: The Newsletter