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.
“Now, state laws may vary on whether the funky smoke is allowed for strictly medicinal purposes—or even recreational uses. For instance, in Rhode Island, no matter what the medical condition is, the smoke cannot be inhaled indirectly or secondhand by anyone less than eight years of age. But assuming the state, for whatever reason, is not interested in reviewing the pot smoking issue, this would leave two other concerned parties: The association, and the offended unit owners themselves. First, with respect to the former, from the association’s point of view, since the migratory smoke is going through common elements, it may very well be materially and unreasonably affecting another unit owner. This would be a violation of most condominium Rules and Regulations. If prompted by the offended unit owner, the association should consider at least conducting a covenant enforcement hearing with both sides to either find a violation, order the activity stopped and start the daily fine process, or, more likely, to see if an arrangement can be made, i.e., insulate the walls of the offending unit or smoke elsewhere (e.g., balcony at specific times of the day when the offended unit owner is not around). And, with respect to the latter, for the offended unit owners, this is certainly a garden variety nuisance claim to be litigated privately between the two unit owners on a trespass and nuisance theory.
“Typically, when presented with this issue, we usually recommend that the executive board call for a covenant enforcement hearing, and we use this time and opportunity to explain the facts of life to both parties: The association 99% of the time does not have the money to retrofit the walls, ceilings, and floors. The unit owner and her boyfriend (Cheech and Chong) can wind up spending thousands of dollars retrofitting their unit to seal it off or at least reduce the smoke migration or purchase a sophisticated (translation: it must work) smoke filtration system. Or, if they refuse, the offended unit owner from upstairs can spend the same amount either retrofitting their own unit, or engage private legal counsel to institute legal proceedings to stop the smoking. Either way, due to the costs on both sides, and ultimately due to the Feds, states, and the condo association staying on the sidelines as well, it would be best if the parties came to an accommodation amongst themselves.
“If the questioner — the above-unit owner — does intend on moving, when a potential buyer directly asks whether you have had any incidents with neighbors regarding smoke, either regular, menthol, or the funky cannabis kind, you should answer truthfully and accurately to the best of your knowledge, or you might face exposure, however tenuously, to a claim for intentional or negligent misrepresentation. And certainly you are legally obligated to answer truthfully and accurately to the best of your knowledge, any written questions posed on questionnaires. In our opinion, at least in Rhode Island, there is no formal obligation to affirmatively disclose the funky smoking issue at hand if not specifically asked. Note that we are not aware of any such questions on disclosure or inspection forms. But, as we typically say, just because you don’t have to disclose given the doctrine of caveat emptor (buyer beware), doesn’t necessarily mean that you shouldn’t voluntarily disclose, given the doctrine of do unto others (a/k/a the Golden Rule).”