Per the Cannabis Regulation and Tax Act, beginning on January 1, 2020, Illinois will become the 11th state to decriminalize recreational marijuana. That means that once we ring in the New Year, condominium unit owners, their guests and tenants are free to smoke marijuana in their units, and on their balconies and patios.
Note however that this new statute amends the Illinois Condominium Property Act by adding an entirely new Section 33, which allows associations to restrict marijuana smoking in the condominium. Section 33 states as follows:
“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.”
To the extent enough unit owners cannot bare the smell of marijuana smoke wafting through the building hallway or balconies, the new Section 33 still empowers the unit owners to amend the governing declaration to prohibit smoking (including tobacco and marijuana) in the condominium building, including private balconies and within units.
If an association is unable to obtain the necessary supermajority of votes required to amend its declaration, association boards still have some discretion to penalize or fine a unit owner if marijuana smoking (or even tobacco smoking) becomes a major problem. Specifically, almost all condominium declarations contain a nuisance provision that prohibits “noxious or offensive” activities in a unit. As such, if there is a significant ventilation problem in a building, the board can use this provision to compel an owner to possibly install an air filtration system, and to limit smoking to a certain room in the unit.
It is also important to note that the Cannabis Act defines smoking as “the inhalation of smoke caused by the combustion of cannabis." Therefore, under the new Section 33, a condominium association can prohibit smoking of marijuana within a unit but cannot otherwise restrict the consumption of cannabis by any other method, such as edibles or vaping of marijuana. Interestingly, while boards can ban vaping of tobacco (i.e. Juul), under the Cannabis Act an association cannot ban vaping of marijuana.