Historically, Illinois condominium associations have not had to pay particular attention to preventing owners and occupants from smoking marijuana within the association. Smoking marijuana was illegal, so in the event people were found to be smoking marijuana, an association’s board of directors could simply notify the police or take action against the person under the declaration’s general prohibition against illegal activity or noxious and offensive behavior from taking place upon the property.

For better or worse, this is about to change. The Illinois House of Representatives recently passed House Bill 1438 legalizing the recreational use of marijuana. On June 25, 2019, Governor J.B. Pritzker signed the Cannabis Regulation and Taxation Act into law, which permits adults aged 21 and older to use marijuana within a private residence and possess up to 30 grams of marijuana. This Act also permits medical marijuana user to grow up to five (5) marijuana plants in their home, but does not permit recreational users to grow any plants in their homes. Upon legalization (January 1, 2020), condominium associations wishing to regulate the smoking of marijuana within the association will no longer be able to simply rely on its covenants which generally prohibit criminal behavior.

Thankfully, the legislature acknowledged the idea that some condominium associations may still want to regulate this activity. As such, the legislature created a new section of the Illinois Condominium Property Act granting condominium associations the ability to regulate the smoking of marijuana within the association, despite the fact that it is now legal.

The addition to the Illinois Condominium Property Act provides that a condominium association’s governing instruments may prohibit or limit the smoking of marijuana within an owner’s unit. However, while the law grants an association authority to prohibit the smoking of marijuana within an owner’s unit, the law requires that such a regulation shall only be effective if set forth in the “condominium instruments.” While many consider an association’s rules and regulations to be part of the “condominium instruments,” the Illinois Condominium Property Act actually contains a narrower definition, and only considers documents recorded against the property (i.e., declaration and bylaws) to be “condominium instruments.” Therefore, while the smoking of marijuana within units can be prohibited or restricted, it must be done via an owner adopted amendment to the condominium instruments, not via a board adopted rule. It should be noted that the association’s ability to restrict via the condominium instruments specifically relates to the smoking of marijuana and does not pertain to the ingestion or consumption of marijuana by other methods (i.e. edibles). Lastly, the new law does expressly state that either the condominium instruments or rules and regulations may restrict the consumption of marijuana, in any form, upon the common elements. Therefore, if the association wants to restrict the consumption of marijuana throughout the common elements, the board need only adopt a rule to such effect.

Legal recreational marijuana use is coming to Illinois, and condominium associations will be forced to consider how, if at all, they want to regulate the activity within the association. While the board of directors will have broad discretion in regulating and restricting the use of marijuana upon the common elements, the question of whether to prohibit the smoking of marijuana within the actual units will need to be left to the owners. Our office has already begun drafting rules related to the consumption of marijuana within the common elements for some of our associations. If your condominium association is curious about how the new law will affect the association specifically, or is considering adoption of a rule restricting the consumption of marijuana, please feel free to contact our office. We are happy to assist you.

This article is being provided for informational purposes only. This article does not constitute legal advice on the part of Keay & Costello, P.C. or any of its attorneys. No association, board member or any other individual or entity should rely on this article as a basis for any action or actions. If you would like legal advice regarding any of the topics discussed in this article and/or recommended procedures for your association going forward, please contact our office.

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