Q. For many years, our condominium association has prohibited smoking throughout the property. Over time, I’ve read articles discussing whether cannabis smoking, for medicinal or other reasons, on a Massachusetts condominium property can be prohibited or not. What are the latest laws in the Commonwealth regarding cannabis vs. regular cigarette/pipe smoking?

                          —Lost in the Legal Haze

A. “The ‘legalization’ of marijuana in Massachusetts has caused significant confusion for Massachusetts condominiums,” says Gary M. Daddario, partner at Marcus, Errico, Emmer & Brooks in Merrimack, New Hampshire. “But in the end, the ‘legalization’ has a very limited impact on an association’s ability to govern. By way of comparison, cigarette smoking is legal—but there are still restrictions on it in most places today. There are several possible options for an association that wishes to curb cannabis smoking. 

“First, marijuana is still illegal per federal law. If your governing documents require owners to comply with ‘state and federal laws’ or ‘all applicable laws’, then an enforcement issue can be taken with an owner/occupant on the basis of the violation of federal law. Be warned however, that—at least anecdotally—such cases are often not taken seriously by law enforcement.  

“Next, Massachusetts law still prohibits consumption of marijuana in public. So again, an enforcement issue could be taken if someone is smoking on porches, decks, patios, or other outside areas. 

“Thirdly, in the same manner that associations can ban the legal act of smoking cigarettes, so too can they ban the smoking of marijuana. Just be mindful that while common areas can be governed by the board based upon a board vote, regulation of smoking inside units needs to occur through an amendment to the governing documents.

“Next, even if owners/occupants have the right to smoke within their units (because it is not prohibited in the governing documents), an excessive amount of smoke that negatively impacts common areas or other units likely still violates other provisions of the governing documents (e.g. nuisance provisions, ‘annoyance’ language, and similar provisions).  

“Finally, the area of marijuana law that does impact an association’s ability to govern is the use of so-called ‘medical’ marijuana. If a person’s use of marijuana is to deal with a condition that meets the legal definition of a disability, then that person can request—and would be entitled to—a ‘reasonable accommodation.’ But the key word here is ‘reasonable.’  So if someone with an accommodation is causing significant negative impacts to others, that accommodation can be negotiated or restricted. While the legal bar here is high, a reasonable accommodation is not carte blanche to infringe on the right of others to occupy their homes safely and comfortably.”