The Michigan Medical Marihuana Act (“MMMA”) allows a qualifying patient to grow up to 12 marihuana plants in an enclosed locked facility. Does this Act allow a co-owner to grow marihuana in his or her condominium unit?
The MMMA provides that a qualifying person "shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act.” This does NOT mean that use or growing of marihuana is now legal; it remains illegal, but the qualifying person is exempt from prosecution.
Most condominium bylaws contain a provision that no co-owner shall engage in any “unlawful” activity. Because possession or manufacture of marihuana is still illegal (unlawful) under both state and federal law, growing marihuana plants in a condominium unit or on the common elements is a violation of the condominium bylaws.
Is an action by a condominium association to stop the co-owner a “penalty,” or a "denial of a right of privilege,” or a “disciplinary action”? In this author’s opinion, no. “Penalty" occurs in the clause “subject to arrest, prosecution or penalty in any manner” which refers to state action. Because possession or manufacture of marihuana is still illegal and the qualifying person is only exempt, then an action by an association to prohibit growth of marihuana does not deny the co-owner of any “right or privilege.” Finally, “disciplinary action” is modified by the additional words “business or occupational or professional licensing board or bureau” and a condominium association is not such a licensing board or bureau.
As of this writing, this is only an opinion. To the author’s knowledge, the MMMA has not been tested in the condominium context by a court.