Community Associations and Marijuana Use

By: Donna A. Zanetti, Esq. of Leach Kern Gruchow Anderson & Song


In Winter 2017, FSR published my article on community associations and marijuana use. This was just after the close of the legislative session legalizing recreational marijuana in Nevada.  More than five years have passed, and it is time to ask whether anything has changed.

Well, according to US News and World Report, 21 states and the District of Columbia have now legalized recreational marijuana.¹ Medical marijuana is legal in 38 states and DC.² Most residents can probably point to one or more dispensaries selling cannabis in their community.  More recently, the advent of COVID-19 popularized curb-side pickup. 

Nevada’s cannabis laws are codified at NRS 678A-D. The State’s Cannabis Compliance Board also maintains a website with useful links and answers to many important questions.  Meanwhile, marijuana production, sales, distribution, and use remain illegal under federal law.

Your community association probably still includes owners with strong opinions on whether marijuana should be “legalized” or more properly “decriminalized” but, in my practice, complaints about marijuana use are few and far between. Nevertheless, many CCRs contain a provision that any violation of federal or state law is also a violation of the CCRs, which can create an interesting enforcement dilemma for the Board.
The 2017 article posed these three hypotheticals:

1. The board president receives a notice that the county is considering approving a recreational marijuana retail store about ½ mile from his home and wants the association to oppose this proposal.
2. Sarah owns the ground floor unit of a condominium which includes a small, enclosed backyard. While inspecting, the manager notices a greenhouse containing marijuana plants in the backyard that is using commonly metered electricity and water.  
3. John smokes marijuana to help him manage chronic back pain. He usually smokes on the back patio of his single-family home.  Recently, John’s downwind neighbors have complained about the smell of burning marijuana entering their home.

Whether an association may use assessments dollars to advocate for or against governmental actions depends on the association’s governing documents. Some documents specifically prohibit advocacy, while others are more broadly worded. Therefore, whether the Board can take any action on hypothetical #1 depends on the governing documents.

According to the Nevada Cannabis Control Board, adults 21 years and older can legally grow cannabis plants at home for their personal consumption, but only if there is not a state-licensed retail cannabis store within 25 miles of the home. The following rules apply:

• Up to 6 plants per person, but no more than 12 plants per household
• Plants must be grown within a closet, room, greenhouse, or other enclosed area that is equipped with a lock or other security device
• Plants must not be visible from a public place
• The grower must own the property or have the permission of the legal owner.

See also NRS 678D.200. Whether or not Sarah is legally entitled to grow for her personal consumption, if Sarah’s greenhouse operation has caused a spike in commonly metered utilities, the Board may explore whether that increase can be passed on to Sarah. It may also enforce its covenants regarding architectural standards.

Finally, for hypothetical #3, under NRS 118, Nevada’s Fair Housing law, a person with a disability may have a fair housing claim if an association attempts to deny his right to use marijuana to relieve a disabling medical condition. Of course, the downwind neighbors may have a nuisance claim under the CCRs due to what may be considered a noxious odor.  The Board will need to tread carefully between these competing claims.  The law is clear that Boards cannot ignore neighbor to neighbor disputes, particularly when one of the disputing parties is a member of a protected class under the Fair Housing Act. The Board must investigate and take the actions that are within its power, such as requesting that John demonstrate a nexus between his disability and the need to smoke (rather than ingest) marijuana or holding a hearing regarding the alleged nuisance violation. 

Finally, NRS 116.3102(3) allows a Board to determine that it will not take enforcement actions if it determines that, under the facts and circumstances presented, the association’s legal position is weak, the covenant to be enforced is inconsistent with current law, the violation is not so material as to justify expending association resources or it is simply not in the association’s best interest to pursue enforcement. However, before relying on NRS 116.3102(3), the Board must determine the facts and make findings supporting its decision.

For associations with employees, the Nevada Supreme Court recently held that adult recreational marijuana use does not qualify for protection under NRS 613.333 or NRS 678D.510(1)(a) and employees who test positive at work, although having used marijuana recreationally outside working hours, may be discharged. See Ceballos v. NP Palace, LLC, 138 Nev. Ad. Op. 58 (August 11, 2022).  Please note that this case refers to recreational use of marijuana, not medical use. NRS 678C.850(3) requires that an employer attempt to make a reasonable accommodation for the medical needs of an employee who uses medical marijuana if the employee holds a valid registry identification card so long as the accommodation would not pose a threat of harm or danger to persons or property, impose an undue hardship on the employer or prohibit the employee from fulfilling any and all of his/her job responsibilities.

In conclusion, community associations are adapting to expanding decriminalization of marijuana use but when issues arise, we encourage Boards to work closely with their corporate counsel to find an equitable solution.

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