Homeowner associations are approaching lawyers to find out whether they can ban marijuana use, even in homes, much as they do garish paint colors and funky yard art — a question that may have to be settled in court.
Already, at Breckenridge’s River Mountain Lodge, a condominium in which second-homeowners rent out their properties mainly to vacationers, growing pot and distributing it was banned last year for medical marijuana. And that now extends to recreational pot, as does a previous smoking ban in all of the units.
In Aurora, several HOAs have inquired about their rights regarding restricting the use, possession and cultivation of pot.
Lawyers who specialize in HOA law say they are getting inquiries from the homeowner organizations about smoking, possessing and growing pot anywhere in an HOA, including inside a residential unit.
“There are a lot of associations looking into it as far as (marijuana) use goes,” said David Firmin, an attorney who specializes in HOA issues and works with the River Mountain Lodge.
But can an HOA ban someone from smoking weed in their own home?
As it stands now, people are free to light up in their homes, as long as they don’t become a nuisance to neighbors.
When nuisances occur, HOAs can take some internal measures, from suspending certain privileges to seeking a court injunction, said Jerry Orten, an HOA legal analyst and spokesman for the Community Associations Institute.
If an HOA wants to ban the use or cultivation of marijuana, the homeowners can vote to do that, as long as they get a two-thirds vote to ban pot, according to Orten.
“People can agree to things which waive their constitutional rights. That’s the essence of covenants,” Orten said. “An association can have a covenant precluding use of marijuana.”
Enforcing a pot smoking ban is a different matter altogether. When the issue of HOAs possibly banning pot use came up in Aurora, Police Chief Dan Oates said he wasn’t going to waste the time of police officers who are summoned to an HOA on a complaint that someone is smoking marijuana.
Not all legal analysts agree about what an HOA can and can’t ban.
Jeff Gard, a Boulder lawyer who specializes in marijuana law, said the HOAs might be able to do so, but he’s not 100 percent convinced.
The attorney says the issue likely will be decided in court
“They can’t themselves impose something contradictory to state law,” Gard said of HOAs. “It’s legal privately. They wouldn’t survive legal challenges.”
He notes that marijuana advocates in Colorado are well-funded and powerful, so court battles in the coming months and years are almost a certainty if an HOA decides to ban marijuana.
Gary Kujawski, HOA information officer for the Colorado Department of Regulatory Agencies, said his office has received only a few complaints from people about pot smoking since voters approved use and possession of recreational marijuana in 2012.
But he hadn’t heard of an HOA actually voting to ban pot all together, whether on the grounds or inside a home.
His office has received more inquiries from folks in HOA communities wondering what can be done — if anything — regarding smoking pot on HOA properties now that pot is legal.
He expects that number to rise exponentially now that recreational marijuana sales are allowed under state law, although no one has called since retail pot has been legal.
“I have a feeling I am going to get a lot of calls,” Kujawski said.