Robert R. Rowley PS

Attorney at Law

Contact Us Now

Marijuana Options for Landlords and Property Managers

Marijuana Options for Landlords and Property Managers

Every few days there are more articles about the changes in the laws regarding the use or possession of marijuana.  Or there is a news segment on the TV.  It would seem clear that a person could then use either recreational or medical marijuana on their own property and not be permitted to use it in certain public or security-sensitive places.  But the issues surrounding such use or possession on rental property is never addressed, and it has become confusing to the majority of rental property owners as to what their choices are.

But it’s easier if you set aside all the issues not related to rental properties and just concentrate on the rights, choices and tools that property managers and landlords have.  What people do in other places on other properties is not relevant here…only what YOU want on your rental property and how to accomplish that.  So when the conversation wanders into where the businesses can set up shop, what type of licenses they have to have, how much can be grown, sold, used, and so on, just tune all that out as it relates to landlords.  Just decide on what you want or need for your own properties and then tailor your Rental Criteria, lease or rental agreement and addendums to exactly that.  Then it’s easy.

For now anyway, there are five categories of rental property owners and managers:

  • Landlords who will accept smokers as well as both medicinal and recreational marijuana.
  • Landlords who have Smoke-Free properties and who do not want marijuana (either medicinal or recreational) in their rental units, whether the marijuana is in cigarette form or other ingestible forms. This would be a SmokeFree/Drug-Free property.
  • Landlords who have Smoke-Free properties, who do not want recreational marijuana on the property, but will accept medicinal marijuana in cigarette form. (This, of course, would be a very rare circumstance, but possible.)
  • Landlords who permit cigarette smoking on their properties, but do not want marijuana in any form, in other words, a Drug-Free property.
  • Landlords who permit cigarette smoking on their properties, and will accept medicinal marijuana, but will not permit recreational use. 

Taking them one at a time:

  1. We’ll call the first category “Free Use.” No problem here.  Take applications for the vacancy, screen as usual for credit, rental and criminal history, and select on the results of the screening.  The tenants can possess and use recreational or medicinal marijuana without rental restrictions.  Or there can be limits about indoor use or use only in a designated area, prohibition against growing, and an extra deposit for smoke/odor damage and clean-up after move-out. The upside is that the pool of applicants will be larger.

The downside is the potential for unauthorized “sharing,” sales, visitor traffic, and noise.  Also, there will be some tenants who decide to grow their own without permission from the landlord.  The problem with grows is the large amount of electricity that is used and sometimes the strain on wiring and the unsafe jerry rigging that goes along with that.  Also the horrendous amount of moisture that causes mold, literally eats away drywall and ruins insulation and structural components.  The costs to remediate after a grower moves out can run into the thousands of dollars.

  1. Landlords and property managers who want Smoke-Free/Drug-Free properties have the complete right to have that. Advertise, post signs, include this on the required Rental Criteria you give to applicants, and above all, include this on your lease in the Additional Provisions lines.  Being a smoker, including recreational marijuana, is not a protected class and, as you know, are not entitled to rent in Smoke-Free rental units.  Likewise, as of now, having a medical prescription for marijuana IS NOT part of the Americans with Disabilities Act (ADA), and is NOT part of any protected class.

When confronted with an applicant or tenant that says a landlord must accept them because they have a disability that requires marijuana, you can remind them that their marijuana use is not part of a protected class.  You can also remind them that there are many places to rent that do accept smokers or marijuana users and wish them well in the future, but that you are not the right landlord for them under these circumstances.  Landlords and Property Managers are within their rights to refuse medical marijuana residents.

The argument that local, state and even federal authorities are no longer pursing marijuana users to arrest should be met with the answer that possessing, using, selling or growing marijuana is still, at this time, against federal laws, and property owners have the right to refuse any of those actions on rental property. The circumstance that authorities have, at present, lower the priority on marijuana can change.  This is a field of law and law enforcement that is fluid and the goal posts are constantly moving.  But for now, the insurance policy aspects, details of the state law, and city ordinances have not solidified enough for a tenant to dictate any policy at all to landlords.

  1. Rental Property Owners who are Smoke-Free, but willing to accept marijuana on their property only if it is prescribed by a licensed medical professional for a medical condition, and to be used only in non-smokable forms, might be termed a “Smoke-Free-MMA” landlord, that is Smoke-Free, Medicinal Marijuana Allowed. This would need to be put on the Rental Criteria, and the exact terms and conditions would need to be spelled out in the lease, rental agreement and/or in a Non-Smoking Medicinal Marijuana Use Addendum signed by all parties.  And the terms would be that violation would result in immediate action that would result in eviction.  Renting on a month-to-month basis until you see how the tenant would abide by the non-smoking restrictions would be the best way to proceed – or at least a short lease of 3 months or 6 months. This category may be housing units that have federal contracts or grants from agencies that do not support properties that have recreational drug use permitted.
  1. “Smoking Permitted – Drug Free.” This is a more complex situation – a rental property that accepts smokers but will not permit drugs in any form, including any form of marijuana. Again, smoking pot either for medical purposes or for recreational use IS NOT A PROTECTED CLASS like a disability, so a landlord may choose to permit smoking but refuse drug use…and even medicinal marijuana is still classified as a drug.  The best way to approach this is to, of course, list it prominently on the Rental Criteria, the application, the lease or rental agreement, and have a very, very specific addendum that details the places cigarettes may be used (outdoor only, community areas only, in a designated smoking gazebo, etc.) and any other smoking regulations that apply.  Then add a Drug-Free Addendum or include the drug-free restrictions on the smoking addendum so that it is all in one place.

The complexity with this choice is enforcement.  When tenants of an apartment building gather in the area allowed for smoking and the odor of marijuana wafts into another tenant’s rental unit or is smelled in the yard, etc.  The landlord needs to decide in advance what their process will be, because where smoking is permitted, marijuana will, in the future, probably appear.  Make a policy of an automatic 20-Day Terminating Notice (if the tenant is month-to-month), or a 3-Day Quit Notice which can be served on any type of lease or rental agreement.  Whatever policy you construct, talk with your landlord attorney about it, make it available well before signing the lease, make it a prominent part of the lease, and it’s recommended to have a separate addendum regarding smoking and drug use and restrictions.

  1. This is the trickiest category of all, “Smoking Permitted – Medical Marijuana Only” category, those landlords that will permit smoking, permit medical marijuana, but will not permit recreational marijuana. This will include all the same approaches as above, placing the recreational restriction on the Rental Criteria, on the lease or rental agreement, and having an addendum that very clearly spells out that the only form of marijuana permitted is prescribed marijuana.  And then list the forms permitted:  patches, tinctures, vaporized, cigarettes, edible, liquid, etc.  Detail the prohibition or allowing of the growing marijuana on the rental property.  List the exact process for accepting tenants who have a prescription, and the process of evicting those who break the lease.

For instance, they may have to go through the usual reasonable accommodation process that service animal requests or requests for ramps have to go through, produce a copy of the prescription or letter from the prescriber, agree to remediate the property to its original condition at no cost to the landlord, and to abide by whatever smoking location the landlord allows.  Again, medical marijuana is not like a legitimate service animal owner in that a medical marijuana patient is not in a protected class so the landlord may ask for a specific Drug-Use Security Deposit, or an extra Fee for Property Remediation for Marijuana Use.

So the plan is to decide what approach to marijuana you want on your rental property, add the necessary language or bullet point to your Rental Criteria, advertise your vacancies in clear language, post the information if there is an office or in any common areas, add the terms and conditions to your lease and/or have an addendum to the lease-up process so you will have the right      to enforce your policy.


%d bloggers like this: