Pubdate: Fri, 08 May 2020
Source: Wall Street Journal (US)
Copyright: 2020 Dow Jones & Company, Inc.
Author: Beth DeCarlo


Where there's smoke, there's fire.

As more states legalize marijuana for medicinal and recreational use,
some neighbors and neighborhoods are divided over pot's particularly
pungent odor. That divide will likely grow as many residents continue
to stay at home to combat the spread of the novel coronavirus.

In Augusta, Maine, adjacent condo owners are currently locked in a
battle between one owner who uses marijuana for a medical condition
and another owner who says the secondhand smoke aggravates her medical

So far, a civil suit filed by the nonsmoking condo owner and her
husband in 2018 has been dismissed by a judge in Superior Court, as
was their complaint with the Maine Human Rights Commission. Most
recently, the couple took their case to the federal level. In a
housing-discrimination complaint filed with the Department of Housing
and Urban Development, they argue that the condo board has denied them
"reasonable accommodation" by allowing the downstairs neighbors to
smoke. That matter is pending.

Much of this could have been avoided had the condo association spelled
out its smoking policy in the rules the condo owners received when
they purchased their units.

Shirley Steinbach, a Bethesda, Md.-based attorney who works with
numerous community associations, says many condo boards today already
have written rules that either ban smoking in general-use areas, such
as lobbies and hallways, or ban smoking on the property altogether.
While restrictions presumably cover any type of smoking, they mainly
focus on tobacco use.

"Marijuana often is not addressed at all [in condo documents]. It's a
nascent issue," says Ms. Steinbach, a litigator with the firm Lerch,
Early & Brewer. "Now with decriminalization, it's more common to see
its use in the open." That is when communities should revisit their
rules to ensure that pot use is covered, with changes voted on by the
association board of directors or unit owners, as appropriate, she

In general, community associations have the authority to ban or limit
smoking-including tobacco, marijuana and e-cigarettes-if the policies
are spelled out, she says. A resident with a doctor's prescription for
medical marijuana can seek a reasonable accommodation based on a
disability under the Fair Housing Act, but the board could choose not
to grant it because, under federal law, marijuana is still illegal,
Ms. Steinbach says.

There are workarounds, however. On Jan. 1, Illinois became the 11th
state in the U.S. to permit both medical and recreational marijuana
use. Legislators also amended the state's Condominium Property Act,
which now says community associations can prohibit marijuana smoking
within an owner's unit, but they can't prohibit its use in other
forms, such as cannabis-infused food and topical ointments.

Municipalities are tackling a related issue-when odors emanating from
large, commercial marijuana cultivators and production plants stink up
entire neighborhoods. Complaints have led to a number of lawsuits, as
well as changes in local permitting and zoning laws, sometimes
creating more conflict and confusion.

In California, for example, voters in 2016 approved Proposition 64, an
initiative that legalized recreational use of marijuana for adults 21
an older. However, the initiative also gives the state's 540 city and
county jurisdictions the right to ban or restrict cannabis operations
at the local level. As a result, a patchwork of rules has emerged,
making it difficult for home buyers and businesses alike to know
what's permitted.

The continuing acrimony prompted Rick Payne in 2017 to co-found
Cannabis Real Estate Consultants. This San Diego-based company helps
businesses involved in the production and distribution of cannabis
products find commercial real estate that meets state and local zoning

In Palm Springs, Mr. Payne represented a licensed cannabis cultivator
in a business park located less than a half-mile away from a
residential area. The city's planning department issued the company a
business permit with the requirement that the operator install
odor-mitigation technology. Cannabis Real Estate Consultants worked
with the cannabis operator to add ozone generators, machines often
used by indoor cultivators to kill disease, fungus, spores and odors
at high levels, he says. So far, the company hasn't received any odor

A number of companies offer odor-mitigation solutions for large-scale
cannabis operations. Other methods involve charcoal air-filtration
systems, negative ion generators/electrostatic precipitators, air
scrubbers, masking agents and the use of negative pressure to keep
odors within the facility.

Meanwhile, cities and counties in states with legalized marijuana will
continue to draft rules they hope will satisfy both homeowners and
cannabis businesses-a near-impossible task.

The odor issue will get bigger as the market grows, Mr. Payne
predicts, but odor-mitigation technology will advance as well, which
should help reduce some of the friction.

While there's growing support for legalized marijuana in the U.S.,
many house hunters blanch at the skunky stench in a pot-smoker's home.

"Even smokers themselves don't want to move into a house with the
smell of somebody else's smoke," says John Manning, managing broker of
Re/Max on Market in Seattle.

Mr. Manning recently had a $1 million listing in which the homeowner
and his roommates were frequent marijuana smokers. In addition to the
pungent odor that permeated the home, Mr. Manning would find joints
and paraphernalia strewn about before open houses. During one showing,
a roommate, who Mr. Manning says was high, plopped onto the couch with
a bag of chips. Mr. Manning couldn't sell the house, despite its
desirable location.

It isn't just the odor that is off-putting to clients, Mr. Manning
says. Residue from third-hand smoke-both from marijuana and tobacco
use-gets embedded in interior walls, carpet, draperies and even
woodwork. Marijuana smoke contains some of the same chemicals and
carcinogens as tobacco smoke, according to, a
research consortium in California.

A 2013 survey of real-estate agents based in Ontario and Quebec,
Canada, found that smoking tobacco in a home can lower the value of a
home by up to 29% and take longer to sell. Overall, 88% of Ontario
agents and brokers agreed that it is more difficult to sell a home
where owners have smoked, according to the survey, sponsored by
biopharmaceutical firm Pfizer Canada.

When Mr. Manning's brokerage gets a listing owned by a smoker, he
seeks to have the furniture removed, then calls in remediation
experts. They prime and paint the walls and ceilings, clean or remove
carpets and curtains, and even remove or wash down stinky light
fixtures, woodwork, curtain rods and fireplace mantels.

"We'll almost always sell a smoker's house empty," Mr. Manning says,
adding that the prep work typically costs thousands of dollars. "The
good news is that it's almost always worthwhile," he adds. "If you
don't do it, it's a greater loss [in sale price] than what would have
been spent on mitigation efforts."