What Does The Passage Of Proposition 64 Mean For Homeowners Associations and Residential Landlords?

With the November 8, 2016 passage of Proposition 64 known as the Control, Regulate and Tax Adult Use of Marijuana Act (referred to hereafter as “Prop 64”), it is time for many homeowners associations (HOAs) and residential landlords to take a fresh look at smoking restrictions put in place to address secondhand smoke and odor concerns in Declarations of Covenants, Conditions and Restrictions (CC&Rs) and leases, respectively, to ensure compliance with Prop 64 and local regulations and to minimize the risk of nuisance claims.
 
Prop 64 is a multifaceted and lengthy Act, but here are a couple of key provisions for HOAs and residential landlords to pay special attention to:

• SEC. 4.5 (adding Section 11362.2 to the Health and Safety Code) empowers a city, county or city and county to enact and enforce “reasonable regulations to reasonably regulate” the “[n]ot more than six living plants that may be planted, cultivated, harvested, dried, or processed within a single private residence, or upon the grounds of that private residence, at one time” permitted under newly added Section 11362.1(a)(3) of the Health and Safety Code.  The city, county or city and county may not enact regulations that “completely prohibit” people from engaging in the above-specified actions and conduct inside a private residence, or inside an accessory structure to a private residence that is fully enclosed and secure.  However, a municipality may “completely prohibit” the above-specified actions outdoors upon the grounds of a private residence.
  • What This Means to HOAs and Landlords:  Pay attention to whether the city, county or city and county where the property is located enacts any regulation that reduces, restricts or prohibits residents from planting, cultivating, harvesting, drying or processing marijuana plants on their premises in such a way that needs to be reflected in your documentation.

• SEC. 4.6 (adding Section 11362.3 to the Health and Safety Code) provides in relevant part that nothing in the statute permitting personal use, possession, planting, etc. of marijuana plants shall be construed to permit any person to “[s]moke marijuana or marijuana products in a location where smoking tobacco is prohibited.”
  • What This Means to HOAs and Landlords:  Legally-compliant restrictions against tobacco use in CC&Rs and leases can be extended to marijuana. 

Check back soon for a discussion of nuisance liability exposure for commercial landlords.
 
Fulmer Ware LLP is a San Francisco based law firm.  Our lawyers have experience litigating and advising on all types of real estate, construction and commercial matters from the negotiation and preparation of documents, risk management, pre-litigation counseling, alternative dispute resolution and all phases of litigation from insurance tenders to trials and appeals.