Washington Homeowner’s Associations and Legal Marijuana

A recent article in the Spokesman Review, Homeowner Groups Cope with Legal Pot, highlights a budding issue for many Washington homeowner’s associations. Although I-502 decriminalizes certain cultivation, sale, possession, and use of marijuana in Washington state, can a homeowner’s association adopt rules to limit marijuana use in planned communities?

Washington statute authorizes a homeowner’s association to adopt and amend rules and regulations regarding residential real estate located within its jurisdiction. See RCW 64.38.020. A homeowner’s association is further authorized to regulate the use of “common areas,” that are owned or maintained by the association. Id. Despite an association’s authority to adopt and amend rules and regulations restricting the use of property, Washington courts have held that an association’s rules must be reasonable and reasonably exercised to be enforceable. See Mountain Park Homeowners Ass’n, Inc. v. Tydings, 72 Wn. App. 139, 864 P.2d 392 (Div. II 1993). For example, Washington courts have upheld restrictive covenants when they are intended to “protect [the] aesthetic harmony of community and maintain uniform appearance.” Id. at 147.

As Washington’s new recreational marijuana law prohibits opening or consuming a package of marijuana in view of the general public, it is likely that homeowner’s association rules prohibiting use of marijuana in “common areas” would be enforced by a Washington court. See RCW 69.50.445. That said, a homeowner’s association restriction or prohibition on the consumption of marijuana in a private residence would likely face practical obstacles to enforcement and may not be upheld as reasonable by a Washington court.

As Washington’s recent change in marijuana policy may give rise to disputes between neighbors, a homeowner’s association may consider clarifying or adopting rules to address the potential conflict. If you have questions concerning covenants, conditions and restrictions, or homeowner’s association governance, Wolff, Hislop & Crockett can help. Contact us today for a consultation.

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