Legal Status as of 2024
As of July 2024, marijuana is legal in 38 of 50 states for medical use and legal in 24 states for recreational use. In 2016, Florida voters approved medical marijuana. In November 2024, Floridians will have the right to vote to legalize marijuana for recreational use in the State of Florida. It appears that the medical marijuana framework will continue to exist after the November 2024 election. However, as of July 2024, marijuana remains a Schedule I substance under the federal Controlled Substances Act. For Realtors, understanding the complexities of marijuana use within community associations is essential for guiding clients effectively, especially as these issues can directly impact a buyer’s decision. The following blog will explore the challenges that community associations can face when regulating adult marijuana use.
An Issue of Fair Housing?
While most are familiar with the federal Fair Housing Act, there are also separate fair housing laws applicable within the State of Florida. Both federal and state fair housing laws prohibit the refusal to make reasonable accommodations to rules, policies, practices, or services. These accommodations are necessary to provide persons with disabilities an equal opportunity to use and enjoy a dwelling, as well as public and common-use areas. A reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service. Open questions remain as to whether denial of a reasonable accommodation to use medical marijuana violates federal or state fair housing laws. Realtors should be aware that clients interested in multi-family properties may encounter shared ventilation systems, which could become a significant factor in their decision-making process. It’s crucial to discuss these potential challenges with clients upfront to avoid surprises later.
Regulating Marijuana Use in Community Associations
Many community associations have enacted declaration restrictions or rules and regulations that exclusively prohibit smoking within a unit or the common areas (or common elements in a condominium). However, a reasonable accommodation request may come in the form of a request from a current owner or prospective purchaser to consume medical marijuana in their unit. Realtors should advise clients to review the community association’s policies on marijuana use carefully, as potential litigation or disputes over these policies could affect their satisfaction with the property. Providing clients with this information early can position you as a knowledgeable and proactive Realtor. Associations may engage in an interactive process [1] to determine the necessity of smoking marijuana versus other routes of administration that do not emit smoke (e.g., smokeless vaporizers, edibles, tinctures, etc.) and the disability-related need to actually smoke marijuana versus such other routes of administration. The Association may also explore the possibility of smoke reduction within the unit, which may include the Association installing certain equipment in the unit or common elements which serve the unit to reduce or eliminate such smoke.
Conclusion
The use of medical marijuana is becoming more prevalent. As a Realtor, being well-versed in community association policies on marijuana use can help you better advise your clients, ensuring they make informed decisions before signing any contracts. This proactive approach not only aids in smoother transactions but also builds trust with your clients. Associations should consult with experienced legal counsel when faced with the foregoing issues.
[1] The “interactive process” is the process that a housing provider (including community associations) might engage in if a requested accommodation presents an undue administrative and financial burden or a fundamental alteration.
