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A recent decision published by the U.S. Supreme Court regarding a California case based on the legality of medical use (and cultivation) of marijuana has created even more of a dilemma for California landlords. The cutting edge issue is: Does the decision affect your duties as an owner or manager of rental property, and if so, how?
California is one of several states which have enacted laws that consider marijuana use and cultivation to be legal when there is appropriate medical justification. Many local jurisdictions in California have passed ordinances which specify circumstances under which such use or cultivation will be allowed. Based on these statutes, tenants (primarily in housing, but in some commercial properties as well) have asserted that their landlord cannot control medical use or cultivation of the drug beyond the restrictions established in state and local law.
Our law firm has frequently been asked to counsel clients on this issue in the past. We have opined that although medical use and cultivation may be legal under state and local laws, federal laws did not contain an exception for medical purposes. This conflict of laws put landlords in an uncomfortable position.
An affected tenant would argue that medical use should be allowed as a disability accommodation because it is legal under California law. The landlord would then have to consider whether prohibiting such use on his property because it is not allowed under federal law might cause him to be sued for discrimination under state law. In other words, would allowing such use be deemed to be a "reasonable" accommodation under the circumstances? Although the question had not been addressed definitively in case law, clients were directed to make risk management decisions, considering that federal law failed to legalize medical use or cultivation and that U.S. law generally supercedes state or local law where there is a direct conflict.
The argument in the lower courts that state law, rather than federal law, would apply was based on the allegation that there was no "interstate commerce" involved. The Supreme Court disagreed, deciding that there was federal jurisdiction even if the cultivation was not for commercial purposes and the product was not transported across state lines. The court did not give an opinion on whether marijuana should be re-classified under the federal Controlled Substances Act as a drug which is recognized as having medicinal uses. The narrowness of the ruling leaves the door open for further controversy in the administrative arena or a possible resolution through new legislation by the U.S. Congress.
For now however, the Supreme Court’s ruling is controlling. Federal law enforcement agencies can clearly punish California residents under federal law for medical use or cultivation which would otherwise be legal under state or local law. Early media reports indicate that federal agencies do not plan to pursue criminal prosecution of individuals for medical use of marijuana. Even if that information is correct, it is unlikely that a landlord would be expected to allow the violation of federal law on a rental property as a "reasonable accommodation" for a disabled tenant.
For more information regarding this issue and related issues, consider the following resources:
1. The actual Supreme Court decision in Gonzales v. Raich (formerly Ashcroft v. Raich)
2. Yahoo! NEWS, keywords "medical marijuana"
(J. Kathleen Belville is Managing Partner of the Fair Housing Dept. of Kimball, Tirey, and St. John. 800-338-6039)
You are right, this puts landlords in an uncomfortable position.
That said, the federal law is stupid.
My mom was dying more than 10 years ago and her Kaiser physician prescribed her marijuana (pills). On principal, she didn’t want to take it but we adult kids thought it would help her to gain some
weight and ease pain. She refused to take it but I always thought it was amazing that her doctor could tell her she should take marijuana pills (which were expensive) but she
couldn’t grow it for a whole lot less money. (How dumb is that??) Goodness knows she would have smoked it as she could not shake the tobacco habit….
Your post is a good one and focused on the issues at hand. I’ve never had pot but have a hard time thinking it’s a whole lot worse than the wine I enjoy with dinner, and certainly, for cancer
patients I believe deeply that it should be allowed. So I have a hard time focusing on how this relates to real estate because I get so angry at the federal government for stepping in
the way when our local state has made its opinion clear on the matter. If it had been legal, I think my mom would have had a little more comfort. Many Americans cannot separate what is
legal from what is ethical.
I’m not one of them. I think the state of California is right on this one. I think the federal government is seriously wrong on this one.
Ms. Beville’s answer is a good one. I would add that the seeminly best thing for a landlord to do is simply prohibit growing marijuana and not address the use of it other that to have the lease prohibit illegal activity. The cultivation of marijuana on/in the rental property is what puts the landlord at risk of federal legal problems — he/she could lose her property. The current law does provide the landlord with a "I didn’t know and had no reason to suspect" defense. Of course the burden of the defense would be on the landlord. However, by not forbidding the use of marijuana in the lease, the landlord is safe from a discrimination suit and by not allowing the cultivation pretty much would protect the landlord from federal trouble. The bottom line is that the current or perspective tenant does not have to disclose that they are a medial marijuana patient per medical privacy rights, just as they do not have to disclose that they take cholesterol medication or insulin. When the landlord advertises a rental unit and states "no marijuana use" or "no weed" or "no 215" they set themselves up for a discrimination suit if the applicant has a legally recognized disability condition. I’m just waiting for a flood of organized "215ers" who do have a legally recognized disability to apply for, and be denied housing because of their 215 status. These are interesting times in California’s landlord/tenant law.
Couldn’t the specification of marijuana cultivation as a prohibited act under the terms of the lease be an indication of a particular concern of the landlord of that issue and therefore raise questions of knowledge to a prosecuting authority? Wouldn’t prohibiting any illegal activity (which would certainly cover cultivation under federal law regardless of any local permission to the contrary) suffice as protection for a property owner, whether under federal laws prohibiting cultivation or state laws allowing use for medical purposes?
I think Landlord shouldn’t have to worry about there property at all while he has renters that are Legal Medical Marijuana Patients under Calif. Laws and that we Voted this in, the Federal goverment Should follow our Vote to legally be able to grow on a property that Patients are renting from landlords..
have you SMELLED a grow house, or lived near one? The stuff reeks!
I support those who need marijuana as medicine, but I also object to having to replace carpeting, drapes, and yes even DRYWALL after a tenant has created a grow room in the house I’m renting them. I’ve spoken with several other landlords and even the kids at my local Home Depot — this is an expensive challenge for many, many landlords and your damages deposit probably won’t even begin cover the work needed to get the place habitable again.
While grow areas CAN reek like none other, with relatively inexpensive proper carbon filtration, growing can indeed be an odorless practice. The price is typically not what keeps some individuals from using the appropriate ventilation or filtration, but rather the fact that it takes a degree of DIY-savvy. This issue would cease to exist IF AND ONLY IF a person who needs help setting up their grow area could get HELP. The stigma attached to growing marijuana forces individuals to secrecy who should otherwise be able to get help from handymen, carpenters, etc. Merely purchasing and transporting the elements needed to construct a complete, quality grow area is considered by most to be at least somewhat risky. I would rant further, but my point is that only when LEGAL USERS are able to be completely open and honest can we be assured that more and more grow areas are well constructed, with pride.
Non Issue?
The issue is not disallowing someone from using a substance on a prescription, but the fact that if a landlord states up front the premise is a smoke free area. Then the alternative would be for those patients to get their presciption via pills.
I would never want to rent from someone who dosen’t want me in their house. Life is tough enough without creating more problems for myself.
As a California Landlord, although I have compassion for my tenant who uses medical marijuana, I choose to not allow the tenant to grow on the rental property. If I were to allow the tenant to grow onsite, I at risk of violating federal law AND allowing an "attractive nuisance" situation- in other words, the very fact that marijuana is being grown on the property could create a situation that would make the home attractive to break-ins for the purpose of stealing the marijuana. Why would I choose to place my property at risk when the tenant can purchase their marijuana at a cannabis club?
i informed my tenant before he moved in i wanted no growing, he had a broken water pipe and i noticed 9 indoor plants in buckets, fuel bill had gone up, he has a legal card posted,he belied my trust and wishes.He denies i ever told him my wishes.I gave him an eviction notice, i live on the samr e property ,i like him and am very sad about this.SHOUILD I MAKE A DEAL WITH HIM AND STICK TO MY GUNS.
I have a real problem s with my co-tenant. He musta had storke or somethng, he’s nuts. . After repeatedly telling me we would NOT grow pot for the guys at the local oc-op – they assembed a large growing areae – right in the living room.
What a sap. Then the "dealer" comes and asked to come in to allow him to add more eqip and I turn him away. Could have put gun to his face but let’s stay cool. My roommate is also owner – lost his mind somewhere. He has no clue he is being used by the pot dealers to grow thier stuff.
Local PD came by at my req and photo’ed all equip and plants..
FD said, yes it IS a major fire hazard but they would not cite him for it. Guess they need to wait until AFTER the fire occurs(?)
This is affects al ot of us, not just the landlords – but unwilling tenants PD suggested I sue landlord and ck all permits re building and complaince and "cerificate of occupancy - maybe nail the them w/ land use and local code/permit violations.
This is no joke. Many of the allegded "co-ops" are busted all the time for dope dealing bec it’s all about the money, zero medical about it. That’s all they want from these saps who grow for them, it’s just one large con job.
My roommate did not even have b’s to tell his dealer that the police and FD had been here, in force, and took pics and are watching the place for this type of action. So I see the duplicity works both ways w/ these dopers.
As a landlord, even if it’s within the law, I wouldn’t want my tenants to consume or to cultivate marijuana or any other drugs. I’d probably send them to a drug rehab in California and find other tenants who don’t have such habits.
I’m appalled at what I’m reading here with this negativity. What’s the problem with it if the tenants are a nice young family who works hard and they happen to smoke marijuana as well as be legal and grow. Now dont get me wrong, I’m not saying stoners are the smartest batch of humanity, but at least this family or person was smart enough to legalize the illegal aspect of what they do. Many people abuse the fact of "being legal" and that’s a sad state to be in. Which in turn gives false pretenses to you renters. Make sure you understand your tenants before they move in.
This is very interesting and as a landlord all that is clear is that this area of the law is rapidly evolving and different in different areas.
Today I found one of my tenants has 12 grown plants and two people with prescriptions. Permission was not obtained in advance. I’m researching the issue now and will obtain prudent legal counsel although it seems to me the best move is to set healthy and legally responsible boundaries with the tenant and proceed diligently without a knee-jerk reaction.
Heh, on a positive note the profit the tenant will likely make will be great insurance the rent will always be paid on time.
It will be interesting to see this issue evolve and hopefully be clarified over time.
Hi. I am a 215 patient, whos 9 plants in my closet, in my BEDROOM, were STOLEN from the LANLORD the other day after his mother called me in to police as suicidal.The police rfesponded to a call from her saying I made a statement after she informed me that I needed to move out due to the fact she didnt think I could afford the rent. I live 20 miles out of town, river in my back yard, loving it! Basically she told me, " Maybe I’m not fit to be a lanlord," I said "Maybe I’m not fit to live." I was devastated by her phone call, because for weeks she had been willing to work with me, due to the fact my girlfriend’s father passed away and she decided not to move in with me. She never took her name off the agreement, I’ve been waiting for a large back child support check, which didn’t come as thought around the end of last month. When he and the officers came, they had to enter my home to look for me, I didn’t know they were coming and was gone.After police left my lanlord entered my locked home, stole my light and 9 plants. I made a report to police. Is this legal??? I live alone and am a female. PLEASE HELP!!! They haven’t served me anything yet and my money for everything I owe will be here in 5 days or so. WHAT SHOULD I DO??
Very interesting. I am a landlord – and found that my tenant is growing marijuana, after i had already suspected him of selling marijuana, i had asked him where gets his medical marijuana, he said he buys it from caregivers. Now i find out he has been growing plants. Not only do i have children in my house, and constantly have people coming to the house to procure weed from my renter, but i also consider this to be a fire hazard. I am currently doing a ton of research to try and have him evicted, but he wont get rid of the plants!!! Not only is he not getting rid of the plants, but now he and his friends only show up to the house to do business.
The funny thing is, the local PD wont confiscate the plants.. I’m literally stuck.
I have a renter that I evicted, he is suppose to be out of the unit on Monday, went to the walk-thru and the pot smell in the apartment is very bad, it said he has a medical card for it. He also signed a contract stated he would not smoke in the unit, I called an agency to see how much it would cost to have it cleaned up, its going to be more than the deposit. I need to know if I can sue him.
I was a manager for over twenty years, and last year had my first encounter with a tenant who had a marijuana card. The rental agreement had the tenant signing the Crime Free Addendum on move-in. He got his card after move-in. I had him provide me with a copy of the card for his files, and adopted a wait and see what happens attitude.
After a month or so, I started getting complaints from my tenants that several males were getting into a car parked in the parking lot. The car didn’t go anywhere. When they got out of the car an hour later, the upstairs tenants were inundated with a cloud of marijuana smoke.
Knowing as the manager, every tenant is entitled to the peaceful and quiet enjoyment of the property they are renting from me, I had the ‘offending’ tenant come to the office again.
I explained to him about the complaints I had gotten from upstairs tenants that don’t appreciate marijuana smoke going into their units. I also reminded him about his card, and his right to smoke his pot, but do all the guys who join you in your car have a medical marijuana card? He said no. I explained to him that although he had the right to smoke it, marijuana was still illegal, and he being responsible for the actions of his visitors, his friends were not permitted to smoke it on the property.
We agreed that he would smoke it elsewhere.
My tenant has a special “care provider” med card in CA. I just learned that he is allowed to grow up to 50 plants and there is little I can do. I’m outraged!
I suggest to go to civil court, for losing income. Because you are loosing tenants, because of pot smokers. And put in your lease no smoking. The law for no smoking in California is legal. And no growing. Once they sign it, it is a legal contract. I am a tenant, and would not rent there, if weed is there. Good luck to you landlords. And my prayers are with you.