board passed a rule banning marijuana in garden plots. Is the board's
: Yes, it's legal.
Qualified persons are allowed
to cultivate marijuana (H&S §11362.775) but may not keep more than
six mature or twelve immature plants (H&S §11362.77(a)). However, just because California does not prosecute citizens for growing a
federally banned substance does not mean your association must allow it.
. The Controlled
Substances Act makes it unlawful to manufacture, distribute, dispense,
possess any controlled substance. 21 U.S.C. 801. The federal
government does not recognize any acceptable medical use for marijuana.
(21 U.S.C. 812(b)(1).) California, on the other hand, legalized marijuana
for medical purposes. (H&S Code §11362.5 et seq
.) Medical marijuana ID cards may be verified at www.calmmp.ca.gov
With one exception,
qualified patients may possess no more than eight ounces of dried
What if the person has a prescription (also known as a “card” or
“license”) for medical marijuana? Although federal law does not
recognize a distinction between medical and recreational use of
marijuana, California does. In 1996, marijuana was legalized for limited
medical use. Under California’s Health & Safety Code §11362.77
qualified patients are allowed to cultivate up to 6 mature or 12
immature marijuana plants. If an HOA resident has a prescription to grow pot, the state will not prosecute provided the grower stays within proscribed limits.
. The January 1, 2015 change in the Davis-Stirling Act that allows garden plots in
backyards (Civ. Code §4750
does not allow for the growing of marijuana. The Civil Code defines
“Plant crop” to means plants that bear edible "fruits or vegetables." Although marijuana can be eaten,
not a fruit or vegetable. Moreover, the statute specifically
excludes "marijuana or any unlawful crops or substances" from the
definition of "plant crops." (Civ. Code §1940.10(a)(3)
Virtually all CC&Rs have a
provision against creating a nuisance
. Regardless of the legality of
the marijuana plants under state law, their presence may still be deemed
a nuisance. Marijuana plants have a strong odor that some find
extremely unpleasant, and several plants grouped together can produce an
overwhelming odor for neighbors or passers-by. Other concerns include:
Security. The plants could attract
Safety. The heat lamps and other materials to grow plants inside a unit could be a fire hazard.
Business. If the person is raising the plants for resale for "medical purposes," he/she is running a business out of their unit.
Insurance. Will the safe/security/business issues create problems with the association's insurance if the board does nothing to address the problem?
Litigation. Litigation may ensue if the board does not abate the nuisance.
Boards must make a business decision
regarding enforcement. Just because an association can go after a pot
grower does not mean it should. Directors must first decide if the
plants represent a nuisance
i.e., (i) Is there any criminal activity associated with the plants?
(ii) Is the odor strong enough to really affect anyone? (iii) Do the
plants represent a visual blight? (iv) To what degree are members impacted by
: Associations needing legal assistance can contact us
To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter