GROWING POT

GROWING POT

QUESTION: We have a resident who is growing a LOT of marijuana in her back yard. Our CC&Rs say no to this but if the state says it's legal who is right?

ANSWER:

Illegal Conduct. Under the federal Controlled Substances Act, the cultivation of marijuana is prohibited. Most governing documents include a restriction that restricts an owner from using his property to engage in illegal or criminal conduct. If your CC&Rs include such a provision, growing marijuana is a violation and would subject the owner to disciplinary action by the association.

Medical Marijuana. What if the person has a prescription (also known as a “card” or “license”) for medical marijuana? Although federal law does not recognize a distinction between medical and recreational use of marijuana, California does. In 1996, marijuana was legalized for limited medical use. Under California’s Health & Safety Code§11362.77, qualified patients are allowed to cultivate up to 6 mature or 12 immature marijuana plants. Thus, if your resident has a prescription her pot farm is authorized under state law (provided she does not exceed the allowed number of plants).

Conflict of Laws. Obviously there is a conflict between state and federal laws. However, just because the state allows the growing of marijuana does not mean an HOA must allow it. It is still illegal under federal law, which makes it a violation of the governing documents if they contain a provision against illegal conduct.

Nuisance. If your documents do not prohibit illegal conduct, all CC&Rs have a provision against creating a nuisance. Regardless of the legality of the marijuana plants under state law, their presence may still be deemed a nuisance. Marijuana plants have a strong odor that some find extremely unpleasant, and several plants grouped together can produce an overwhelming odor for neighbors or passers-by. Also, they may attract criminal activity, a legitimate concern of the person's neighbors. The strong smell as well as safety and security issues fall under the nuisance provisions of the CC&Rs.

RECOMMENDATION. The first step for an association is to send a warning letter to the owner detailing the nature of the violation. If the resident can't produce a valid prescription for medical marijuana, the association can call the police. If the person has a license to grow marijuana, the association can still proceed under the criminal activity and nuisance provisions of its CC&Rs. The grower could "cure" the violation by moving her plants inside where they can't be seen or smelled.