FAQ: What should landlords know about marijuana use in their properties

In the fall of 2016, Massachusetts voted to legalize recreational use of cannabis. MA isn’t alone, as four states and the District of Columbia have also approved recreational marijuana use and 23 states and the District are allowing medical marijuana use. While implantation of the law in the Commonwealth has been slower than initially expected, it will be a reality that landlords will have to deal with moving forward.

Landlords and property managers can find themselves in a quandary trying to create (and implement) a marijuana policy that complies with both state and federal laws. Marijuana use and possession are still illegal on the federal level and federal law takes precedent over state law.  Landlords who deal with federal funding – Section 8 housing is one example – are required to comply with federal law. That said, most housing laws are enacted at the state and local level.

We spoke with Rob Ciampitti, of Liberty Law and asked him some of the questions that Landlords might have about adapting to the new law.

Can a Landlord refuse to allow tenants to smoke marijuana under the new laws?

The simple answer is, “Yes.” Just as you are allowed to prohibit cigarette or cigar smoking, you can also prohibit marijuana smoking. You can also prohibit marijuana use completely or allow it only in certain forms. For example, you can allow edibles or concentrates, but still forbid smoking.

Even in states that allow the consumption of marijuana, smoke or other perceived negative aspects of marijuana use could certainly impact neighbors or other tenants. Also, it is important to remember that just like alcohol, the legal age to use pot in MA is still 21. Anyone under that age consuming will be in violation of state law.

My tenant thinks that because pot is now legal that he has the right to smoke in my building. I still don’t want him to. What are my rights as the landlord?

Generally, it depends on what your current lease prohibits. If your lease prohibits smoking or has an anti-crime or drug clause, the fact that marijuana may be legal makes no difference; you can continue to prohibit any type of smoking in the unit and take action to enforce those rules like you would any other lease violation.

If the lease doesn’t have those types of clauses, then it gets a lot more complicated. You can include a clause prohibiting conduct that is unlawful under state and federal law as marijuana is still banned under federal law. Your best bet is to talk to a good attorney who understands the issues and can advise you based on the specifics of your existing lease.

Can I evict someone for smoking marijuana or disturbing neighbors with smoke?

If the residence is in a state where marijuana is legal in some form, it may be difficult to evict a tenant after a single violation. Allowing the tenant to remedy the situation first would likely be the most successful course of action.

If the problem continues, and if multiple violations or constant complaints from neighbors are documented, it may be possible to evict the tenant.

What about growing it on my property?

MA law allows adults over the age of 21 to grow up to 6 plants, with no more than 3 flowering at a time. If there is more than one adult in a home, the limit of plants per house may not legally exceed 12. Any violation of this would constitute a breach of MA law and could be treated as such under your existing lease.

Just like smoking, a landlord can prohibit renters from growing pot by including a specific rule as a clause in the lease. If the issue comes up after the lease has been signed without such a clause, the landlord would likely need to rely on an anti-drug or crime policy that hopefully was included in the lease.

You would then need to send written notice of the lease breach, citing the appropriate clause. If the renter continues to grow plants after receiving the written notice, the landlord may attempt to evict the tenant for violation of the lease.

If you don’t include a specific clause, it will be very difficult to prevent renters from legally growing marijuana during the term of the lease.

Another factor to keep in mind when it comes to growing is your utilities. Horticulture of any kind requires significant power and water usage. Growing marijuana also requires a lot of moisture. In an area that hasn’t been properly ventilated or designed as a green-house, excess moisture can be very harmful to the building. So, you may have very legitimate reasons to prohibit cultivation on the premises.

Will my standard insurance policy or a tenant’s renter’s insurance policy cover damages caused by pot smoking?

This is a really good question and one without an easy answer. Now that marijuana is legalized in many forms, it is important to contact the insurance company in question to ask if they would cover such damage or decline coverage based on the federal illegality of marijuana. Many insurance policies won’t pay for damages caused by illegal activities and you don’t want to be on the hook if a balcony burns down due to careless smoking.

What about medical marijuana?

 The situation with medical marijuana is different. In 2012, Massachusetts voters approved marijuana for medical use, and there are legal dispensaries open and operating throughout the state.

Medical marijuana is overseen by the state Department of Public Health, while the implementation of the recreational marijuana law is being overseen by the state treasurer’s office, which is tasked with setting up a Cannabis Control Commission.

What this means for landlords is that a tenant who is a medical marijuana patient has the right to not be discriminated against just like any other person with a disability or medical condition. If you are having issues with a person who is legally using medical marijuana, you will want to consult an attorney before taking any action that could be seen as discriminatory.

Can being “pot-friendly” be selling point?

There is a school of thought that says being pro-cannabis can be good for business. As public sentiment toward marijuana has become more relaxed, some hotels and resorts in states with legalized marijuana have created a business plan out of being pot-friendly. It’s not out of the question to think that some tenants might be willing to pay a premium to live in pot-friendly building. You just need to be aware and willing to accept all the risks mentioned above.

Whether you decide to allow marijuana in your buildings is a complex decision that you need to consider very carefully. For some, the stigma attached to use of marijuana is enough to forbid it, for others it is strictly and economic decision. Regardless of how you chose to play it, clear and frequent communication of your rules and well-written lease are your best assets.