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HOA’s ability to ban marijuana in CO is up for debate

Homeowners associations in Colorado often implement a number of rules and regulations aimed at maintaining a peaceful and secure living space for all residents. However, when restrictions run counter to state or federal regulations, there can be disputes regarding just how far these HOA-imposed restrictions can go.

With the legalization of marijuana in Colorado come many questions regarding the rights of users under different circumstances. According to the Colorado Constitution, there are no legal consequences regarding specific amounts of marijuana that are cultivated, used and/or possessed within the state. However, some people wonder if whether HOAs are allowed to restrict marijuana usage within a designated area (such as a housing development).  The wording of the law would seem to permit HOAs to create limitations because marijuana usage is never expressly referred to as a “right.” However, in general, HOAs cannot create rules that go against peoples’ constitutional rights.

Additionally, HOAs implement a number of rules banning activities that are otherwise considered lawful. For instance, while it may be considered lawful to keep chicken coops within the state, an HOA may prohibit this activity at a given development. Other typical bans include making certain alterations to a home, running an at-home business that would generate traffic, erection of fencing and many other considerations. These are known as restrictive covenants, and these agreements may extend beyond recognized local or governmental ordinances.

Both homeowners and HOAs must be aware of relevant laws to ensure they remain in compliance. Failure to comply can lead to lengthy litigation as well as a range of fines and penalties. As a result, it is important to discuss any homeowner-related legal concerns with an experienced attorney.

Source: The Gazette, “Law a little gray on HOA ability to ban marijuana,” Jim Flynn, July 3, 2016

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