An article in the January issue of The Cooperator recently stated: “Cooperate apartment corporations often confront situations where a particular shareholder’s behavior is offensive to others in the building.” Truer words have not been spoken and FGC is no exception.
Even before the District legalized marijuana in February 2015, FGC’s board was receiving complaints from some co-op members about the smell of marijuana. Reportedly, it was often prevalent in the hallway on certain floors and seeping into their unit. When the city made it lawful for DC residents to possess and use limited amounts of marijuana, it created an additional revenue source for the city and satisfied the appetite of potheads, but it also added to the problem for non-smoking residents living in multi-family housing. Adamant non-smokers object to inhaling any second-hand smoke, including weed. This presents a dilemma for a board that tries to appease disgruntled non-smoker shareholders without infringing on the rights of potheads, er, smokers in general.
The governing documents of cooperative apartments and condos typically contain provisions that prohibit disruptive and illegal conduct by a shareholder. These documents usually allow for termination of a shareholder’s membership for unacceptable behavior. But when the original documents do not contain a non-smoking policy, adding one could be like finding a sophisticated supporter at a Trump rally.
Enforcing a no (pot) smoking policy becomes a joint effort (pun intended) between the board and management. When reasonable measures taken to remedy the problem prove fruitless — such as having the management agent send a letter to the offenders or meeting with them — legal action may be necessary to protect the rights of other residents. Some FGC members would agree that the following abbreviated clause taken from our own occupancy agreement addresses this. “The Member shall not permit anything to be done … which will … interfere with the rights of other occupants.” That includes being able to breathe inside our unit without getting a contact high. That attempt to inject a bit of humor may have fallen flat, but seriously the issue isn’t funny.
From this layperson’s perspective, there is a quandary for landlords and property owners in the District of Columbia: Despite the fact that people may legally use marijuana in DC, such use remains a crime under federal law. Go figure.
Although it seems that in landlord/tenant court the scales of justice often lean heavily toward the tenant, DC landlords who decide to prohibit the use of marijuana on their property should ensure that their governing documents contain provisions that state that the property will maintain a drug-free/smoke-free dwelling. And while there is no guarantee that inclusion of such a provision will balance the scales in the courtroom, there is a chance that it could give property owners a leg-up. One exception — District of Columbia Housing Authorities (DCHA) properties do not have to deal with this matter. The use, sale, or possession of marijuana remains illegal on their sites.
One last thing. Property owners housing known potheads — take heed. There are only a few short weeks before April 20, the day that potheads around the country will dance with Mary Jane as they observe National Weed Day or 420. Set-up those exhaust fans.