Do Marijuana Smokers Have Special Rights in Your Co-op or Condo?

The possession and use of marijuana by persons who are at least 21 years old is now legal in New York, as is the sale of marijuana and other cannabis products by New York State licensed dispensaries. However, a number of our cooperative and condominium clients have asked whether they may ban the smoking of marijuana in their buildings, either because they find it bothersome or because they are concerned about the adverse health effects associated with second hand smoke.

The smoking of marijuana in the public portions of buildings is subject to the same legal restrictions as the smoking of tobacco, i.e., it is forbidden. There is no exemption for the smoking of medical marijuana. The smoking of marijuana and the possession and use of other cannabis products inside apartments is lawful, including “edibles” that are not smoked. However, like the use of tobacco, the smoking of marijuana inside apartments that leaks into public areas may be forbidden under building rules, and all smoking of marijuana inside apartments, regardless of whether it can be demonstrated that it leaks into public areas, may be banned by amendment to a cooperative’s proprietary lease or a condominium’s bylaws.

New York City Local Law 147, passed in 2017, required owners of multiple dwellings to adopt no smoking policies. The policies adopted by many cooperatives and condominiums were broadly enough written so that they banned marijuana as well as tobacco smoking in public areas. The same has been true about complete smoking bans that have been adopted through lease and bylaw amendments. There were, however, some smoking policies that were drafted more narrowly, and their application to marijuana smoking is ambiguous. We suggest that buildings review their policies to determine whether they need to be revised. In cases where policies do not require revision, boards may nonetheless wish to advise their residents that the smoking of marijuana, either in apartments or common areas, is covered by the existing smoking policy.

For more information, contact our attorneys in the Cooperative and Condominium Practice.

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