Take action on marijuana issues before problems arise

Q. I have been reading a lot about the legalization of marijuana in Illinois. We have enough issues with secondhand tobacco smoke where I live. Can you explain how condominium and homeowner associations may be affected by the legalization of marijuana in Illinois?

A. As of Jan. 1, 2020, Illinois will join the limited number of states to have legalized the recreational use of marijuana. I suspect associations will see (smell) some amount of increase in the use of marijuana by residents.

Importantly, the legislation that legalizes the recreational use of marijuana also amends the Illinois Condominium Property Act ("ICPA"). The legislation creates new Section 33 of the ICPA. The new section addresses the ability of condominiums to regulate smoking and consumption of cannabis. It states as follows:

"Sec. 33. Limitations on the use of smoking cannabis. The condominium instruments of an association may prohibit or limit the smoking of cannabis, as the term "smoking" is defined in the Cannabis Regulation and Tax Act, within a unit owner's unit. The condominium instruments and rules and regulations shall not otherwise restrict the consumption of cannabis by any other method within a unit owner's unit, or the limited common elements, but may restrict any form of consumption on the common elements."

Probably an oversight, the legislation does not make any similar change to Section 18.5 of the ICPA (governing "master associations") or to the Common Interest Community Association Act (governing "common interest community associations"). That said, all of these associations should, to some extent, be able to address issues related to the legalization of the recreational use of marijuana in their governing documents.

Note too that this legislation defines "cannabis" to cover more than marijuana, and includes, but is not limited to, hashish and other substances that are identified as including parts of the plant cannabis sativa (for you botanists).

I have written previously about dealing with complaints in associations regarding secondhand tobacco smoke. Secondhand marijuana smoke will likely give rise to complaints of "nuisance" by association residents, as we currently see with secondhand tobacco smoke. These complaints typically involve claims from a resident that secondhand smoke has migrated into their unit from another unit.

Associations should be able to address these marijuana secondhand smoke complaints in similar fashion as they do with secondhand tobacco complaints. That is, the board can levy a fine, after providing notice and opportunity for a hearing, if the migration of the secondhand marijuana smoke violates any language in the declaration or rules. Additional remedies are available if the problem continues. However, it can be a challenge to determine the unit that is the source of complained secondhand smoke, be it tobacco or marijuana.

Moreover, associations can be proactive and consider addressing potential issues that can arise as the result of the legalization of the recreational use of marijuana. Proactive associations can consider:

• Adopt an amendment to the association's declaration to prohibit smoking of tobacco and cannabis on the property, including the common elements, limited common elements and in the units.

• Adopt an amendment to the association's declaration to restrict consumption of cannabis by means other than smoking within the common elements, except the limited common elements.

• Adopt rules addressing secondhand marijuana smoke as may be appropriate.

Tangentially, associations may also see an "uptick" in loud music complaints and, I am told, pizza deliveries.

This is uncharted territory in Illinois, so I suspect that dealing with issues related to the recreational use of marijuana will be an evolutionary process, both in general, and specifically for condominium and common interest community associations.

• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in the Chicago suburbs. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.