Q. I own a condo in a nice community, but I plan to move next spring because I can’t deal with this situation. The unit below mine is owned by a young woman who often smokes cannabis with her boyfriend. She says she has proof that she is allowed smoke pot for medicinal 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 correct 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 staying 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?
A. “Our firm faces these situations all the time,” says Frank Lombardi, partner at Lombardi Law Group in Lincoln, Rhode Island. “Briefly, this is a case of competing compelling interests between unit owners. The initial and primary duty of the association is to investigate the facts on both sides of the wall—or here, the floor, literally and figuratively; since that ‘floor’ is a common element and the happy smoke is migrating through and into another unit, it is an issue to be addressed by the condominium association to a point.
“In my opinion, what Cheech and Chong are doing in the unit below you is not a protected act under federal law, and as such, technically does not require reasonable accommodation by the condominium association, unlike in a case where someone wanted or needed an emotional support animal. If push came to shove so to speak on the federal side, this medical protection would not be enforced. The problem is, the feds are either too busy to enforce the prohibition, or are deliberately as an informal policy, looking away from it—which leaves the issue to be determined by the states.