Can Your Landlord Stop You From Smoking Marijuana?

Photo by HRB

Photo by HRB

In four states and Washington, D.C., it’s legal for Americans to possess small amounts of marijuana for recreational use. Twenty-four states and Washington, D.C. allow the use of marijuana for medical purposes. More states are expected to follow in both categories during the 2016 election. In many cases, this means that residents are free in those states to smoke cannabis in the privacy of their own homes. But what happens when those people are renters, and not the homeowners themselves? For many people, renting laws are becoming increasingly murky in the wake of marijuana legalization.

As more states vote to make certain kinds of marijuana legal, the stigma surrounding use of the drug has decreased. According to a Pew Research Center report in 2015, about 49% of Americans admitted to trying marijuana, with about 18.9 million people (about 7.3% of the population) saying they had used marijuana in the last month. That’s roughly in line with a Gallup poll also conducted in 2015, which showed that around 44% of respondents had tried marijuana in the past, and 1 in 10 Americans currently smoke some form of cannabis.

 As more people feel comfortable making their marijuana use more public, we could also see an increase in run-ins with landlords who aren’t crazy about pot-using tenants. With different distinctions between medical and recreational use, along with varying state laws about using and growing marijuana, it’s a complicated issue that many people are unsure about. That’s not to mention the elephant in the country: The federal government still hasn’t removed its complete ban of the drug on a national level. Can landlords outlaw marijuana on the properties they own and manage? Here’s what we know so far.

The simplest answer about marijuana laws when it comes to renting property is that private landlords are generally free to include any bans they want in a lease document. One column in the Alaska Dispatch News explores why that’s the case. The law that made recreational use legal in the state also says that schools, employers, hospitals, and people in general who own and control private property can prohibit or otherwise regulate the possession of marijuana.

Cynthia Franklin, director of Alaska’s Alcoholic Beverage Control Board, explained to the Dispatch News that the law can be interpreted to mean the following:

That means that a landlord could write a prohibition of marijuana in the lease. If a tenant had marijuana in any of these capacities on the property, they would be violating the lease in the same way as if they had a pet on a property where the lease prohibited pets, and would be subject to eviction and perhaps fines to restore the property to its pre-lease condition, depending on the specific terms of the lease or rental agreement.

In many ways, it’s the same as writing up the terms of a lease that says you can’t smoke tobacco on the property, or have dogs that weigh more than 20 pounds — or whatever other stipulations landlords would like to make as a property owner. Landlords can choose whether or not to write up certain terms, and would-be tenants are free to decide whether or not they can live with those agreements.

Colorado Medical and Recriational Marijuana Plants

Photo – Alex Pullen

There is another aspect to the marijuana debate, however, which is that landlords by law cannot discriminate against people with disabilities. In states where medical marijuana is allowed and used for treatment, tenants could say that their medical marijuana use is a) protected, private information and b) permitted as a medical treatment, and therefore not subject to discrimination by the landlords. But this issue could be made moot by the fact that the prohibition of all marijuana use — even recreational smoking — will be very difficult to enforce in a court of law, according to many experts.

The growing of marijuana plants on a rental property is likely more enforceable than smoking or otherwise consuming the marijuana itself, Kevin Brady, an Anchorage attorney familiar with landlord-tenant law, told the Dispatch News. But even so, if odors and water control don’t damage the property in any observable way, it could be tough for landlords to make a case and legally seek eviction.

“Unless a behavior produces an observable effect on the property, how would it be enforceable?” Brady asked. In other words, if the growing, consuming, or smoking of marijuana doesn’t damage the property in any way and the drug is legally allowed in the state in question, it’s likely not grounds for eviction.

 In the cases of growing or smoking marijuana in states where it is legal, there might be grounds for eviction if the lease included clauses about anti-drug policies or anti-smoking rules in general, which likely include tobacco and marijuana together. “If your lease prohibits smoking or has an anti-crime or drug clause, the legality of marijuana use on a state level is irrelevant; you should be able to enforce the lease and prohibit smoking in the unit,” Bret Sachter, an Avvo attorney, told Zillow.

Brady said a blanket ban on marijuana use could still have some teeth to it, since marijuana is still federally banned. However, for it to be enforced it would have to be a case that makes it to federal court, and Brady doesn’t see a small possession case going that far in the legal system.

If landlords are trying to control their tenants from getting high, they might have a problem of enforcing a ban like that. But if they simply want to stop smoking in particular — which is where a majority of odors or other tenants’ complaints might come from — it might be more possible. California’s legislature is considering a bill that would allow landlords to ban marijuana smoking (even for medical use, currently the only type of marijuana allowed in the state). Tenants could still use edibles or oils, but landlords could legally stop tenants from smoking a joint if they wanted to. The bill passed through the Assembly in early 2016, and is currently being considered by the Senate.

 The only thing that’s crystal clear about marijuana and rental agreements is that there are many unanswered questions, and a million possible scenarios that could lead to different legal outcomes. Most experts conclude that until it becomes an issue in a courthouse somewhere, it might be impossible to tell how certain state laws will be interpreted.

“…We won’t know for sure until someone sues,” Franklin of the Alaska Alcoholic Beverage Control Board said.

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