With the advent of legislation legalizing marijuana for both medical and recreational purposes in a number of U.S. states, many co-op and condo communities are now faced with a new quality-of-life issue. Apartment living is of course very different from living in a detached single-family home. What one resident does in their apartment may significantly impact their neighbors in adjoining units. Secondhand tobacco smoke has long been a chronic problem in multifamily communities—and now many boards are concerned that if cannabis use increases thanks to legalization, it will add a new layer of complication to smoke complaints.
Perhaps the overarching question is whether boards can treat different kinds of smoke in their buildings and HOAs differently. Are all smokes equal under the law, or are some smokes more privileged than others? Can a co-op or condo community permit tobacco smoking within apartments (or in common areas, for that matter), but forbid the consumption of cannabis?
Secondhand smoke is an issue because in addition to the objectionable odor, cigarette and cigar smoke contains carcinogens, allergens, and irritating particles that can create or aggravate a host of medical conditions in nonsmokers. While a number of credible studies have suggested that marijuana smoke is less harmful than tobacco smoke to both the smoker and those exposed to the smoke secondhand, the fact remains that lots of people don’t want the smell of weed wafting through their home any more than the smell of cheap stogies.
“There is no absolute right to smoke, even in your own apartment, if doing so creates a nuisance or disturbs your neighbors,” says Michelle Quinn, a partner with Manhattan-based law firm Gallet Dreyer & Berkey. “Boards can place restrictions on all kinds of smoking. Most co-op and condo buildings have existing provisions in their proprietary lease and/or house rules that prohibit residents from allowing offensive odors to seep into their neighbors’ apartments or the common areas of the building. Odor nuisances are not limited to smoking, but also include smells from cooking, pets, and hoarding situations. Generally speaking, the limitations on smoking cannabis would be the same as the limitations on smoking tobacco or vaping/electronic cigarettes. It would be extremely difficult to justify permitting one and not the other, since now they are all legal.”
The overall picture in New Jersey is a little different at present. “There are no real regulations adopted yet,” says Scott Piekarsky, an attorney with Philips Nizer, located in Hackensack. “As the law has been effective only since February 2021, no marketing of recreational cannabis has begun yet. Medical marijuana is sold and used, but recreational use hasn’t commenced. That said, people complained about this problem before the change in the law. One of our co-op clients was concerned about the second-hand smoke problem and asked us for advice. The statute speaks to smoking, vaping, and aerosolizing of cannabis. If you’re a co-op, you can prohibit or regulate smoking in the units or common structure of the co-op. Co-op boards have those broad powers, but condos can only institute rules if they’re approved by the association and the majority of unit owners—and they may be limited to regulating the issue in common areas only. Co-op corporations own everything included in their property, but condominium associations only own pieces of common elements. As a co-op shareholder you really are a renter not an owner. By nature of the ownership structure, co-op boards have different rights than condos.”