What You Need to Know About Cannabis and Marijuana in Illinois Condos Under the Illinois Condominium Property Act

What You Need to Know About Cannabis and Marijuana in Illinois Condos Under the Illinois Condominium Property Act 

As Illinois became the 11th state to legalize marijuana in June 2019, it greatly impacted a condominium association’s right to simply restrict the consumption of marijuana in the condominium building(s).  Previously, associations could rely on bans on criminal behavior to assert that marijuana could not be consumed, but that does not appear to be a valid basis after June of 2019.  Although marijuana is technically still not legal at the federal level and there is a conflict between the two, it is not presumed that a court in Illinois would rely on a federal statute to find that the consumption of marijuana is illegal.  Associations could always rely on general bans of smoking in their instruments to curb some of the use of marijuana as well as provisions that restrict noxious or nuisance activities.  

Now that marijuana is legal, a condominium association should know that there are limits on what it can, and cannot, do in relation to prohibiting or regulating the use in a condominium.   Section 33 of the Condominium Property Act (765 ILCS 605/33), which was enacted at the same time that marijuana was legalized in Illinois, states: 

Limitations on the use of smoking cannabis. The condominium instruments of an association may prohibit or limit the smoking of cannabis, as the term “smoking” is defined in the Cannabis Regulation and Tax Act, within a unit owner’s unit. The condominium instruments and rules and regulations shall not otherwise restrict the consumption of cannabis by any other method within a unit owner’s unit, or the limited common elements, but may restrict any form of consumption on the common elements. 

What is “smoking” in the Cannabis Regulation and Tax Act?  The Cannabis Regulation and Tax Act, 410 ILCS 705/1, et seq., was passed in June of 2019 as well, and under that act, “smoking” is defined as “the inhalation of smoke caused by the combustion of cannabis.”  Based on the provisions of the Cannabis Regulation and Tax Act, it appears that “smoking” would not include vaping as it does not include a “combustion.”  

If Section 33 of the Condominium Property Act is broken down into its component parts, then, a condominium association: 

1. Can, through the condominium instruments or rules and regulations, ban traditional smoking of cannabis/marijuana;
2. Cannot restrict the consumption of cannabis by other means other than smoking within an unit or on a limited common element; and
3. Can restrict the consumption of cannabis (regardless of the means of consumption) on general common elements.

If the condominium instruments already include a general ban on marijuana/cannabis, then the provision will not be enforceable under Section 33 of the Condominium Property Act.  A general ban on smoking in the units will apply to the smoking of cannabis and should be able to be used to regulate the first prong above.  Importantly, if the instruments do not include such a ban, the association would have to go through the process for amending the condominium instruments, which would require a unit owner vote because Section 33 only discusses the “condominium instruments,” which by definition in the Condominium Property Act do not include rules and regulations.  

If a board has specific questions about restrictions on the use of cannabis or marijuana in the condominium, retention of experienced counsel is suggested for multiple reasons, including that an amendment to the instruments will need to go through a formal process and it is critical that it is drafted in accordance with the aforementioned statute and that consents are properly obtained.  The experienced attorneys at Hirzel Law can help the board follow the procedures to make sure that the Condominium Property Act (and the Cannabis Regulation and Tax Act) are not violated. 

The attorneys of Hirzel Law, PLC focus their practice on condominium and homeowners association law in addition to real estate law. Our attorneys have extensive litigation and trial experience in state and federal courts involving commercial litigation issues and real estate matters. We stand by our clients, offering quality legal representation and promptly responding to our clients’ needs. Contact Hirzel Law online or call 312-552-7669 to learn how our Illinois attorneys can help.