Page 5 - New England Condominium October 2020

NEWENGLANDCONDO.COM NEW ENGLAND CONDOMINIUM -OCTOBER 2020 5 Legal Q A Cannabis Quarrels Q I own a condo in a nice com- munity, but I plan to move next spring because I can’t deal with this situation. Th e unit below mine is owned by a young woman who oft en smokes can- nabis with her boyfriend. She says she has proof that she is allowed smoke pot for me- dicinal purposes. The problem is, I can’t stand the smell, and there doesn’t seem to be any way of getting away from it. Is my neighbor cor- rect in saying she can smoke whenever and wherever she wants because it’s for medical reasons? If I could be freed of the marijuana aroma, I might consider stay- ing put, but I’m not sure that’s possible if this person has a medical exemption from smoking rules. Do I have any options? If I go forward with selling my unit, do I have any legal obligation to inform potential buyers about the marijuana smoking? —Avoiding Inhaling A “Our firm faces these situ- ations all the time,” says deliberately as an informal policy, looking enforcement hearing with both sides to Frank Lombardi, partner at away from it—which leaves the issue to be either find a violation, order the activity Lombardi Law Group in Lincoln, Rhode determined by the states. Island. “Briefly, this is a case of competing compelling interests between unit owners. the funky smoke is allowed for strictly can be made, i.e., insulate the walls of the The initial and primary duty of the asso- ciation is to investigate the facts on both al uses. For instance, in Rhode Island, balcony at specific times of the day when sides of the wall—or here, the floor, liter- ally and figuratively; since that ‘floor’ is a the smoke cannot be inhaled indirectly And, with respect to the latter, for the of- common element and the happy smoke is or secondhand by anyone less than eight fended unit owners, this is certainly a gar- migrating through and into another unit, years of age. But assuming the state, for den variety nuisance claim to be litigated it is an issue to be addressed by the con- dominium association to a point. “In my opinion, what Cheech and leave two other concerned parties: The Chong are doing in the unit below you association, and the offended unit own- is not a protected act under federal law, ers themselves. First, with respect to the ecutive board call for a covenant enforce- and as such, technically does not require former, from the association’s point of ment hearing, and we use this time and reasonable accommodation by the con- dominium association, unlike in a case through common elements, it may very both parties: The association 99% of the where someone wanted or needed an well be materially and unreasonably af- emotional support animal. If push came fecting another unit owner. This would be fit the walls, ceilings, and floors. The unit to shove so to speak on the federal side, a violation of most condominium Rules owner and her boyfriend (Cheech and this medical protection would not be en- forced. The problem is, the feds are either fended unit owner, the association should too busy to enforce the prohibition, or are consider at least conducting a covenant “Now, state laws may vary on whether or, more likely, to see if an arrangement medicinal purposes—or even recreation- no matter what the medical condition is, the offended unit owner is not around). whatever reason, is not interested in re- viewing the pot smoking issue, this would a trespass and nuisance theory. view, since the migratory smoke is going opportunity to explain the facts of life to and Regulations. If prompted by the of- stopped and start the daily fine process, offending unit or smoke elsewhere (e.g., privately between the two unit owners on “Typically, when presented with this issue, we usually recommend that the ex- time does not have the money to retro- Chong) can wind up spending thousands & O FFICE OCATIONS N L I B OSTON A ND N ORTH A NDOVER continued on page 14 QUESTIONS & ANSWERS