The 411 on the 420—Can Tenants Smoke Marijuana in Your Rental?

Given the expected passage of Vermont’s congressional legalization bill, we thought this article from author Chris Diezel on cannabis and rentals was relevant:

With laws on cannabis changing so quickly, it’s a good time for landlords to acknowledge the culture shift, and how it impacts smoking and use in their rentals.

Regulatory Matters

As of July, 2017, recreational marijuana was legal in eight states: California, Oregon, Nevada, Washington, Colorado, Maine, Massachusetts, and Alaska.

Twenty-seven more states have medical marijuana statutes on the books, and the list of cannabis-friendly states is likely to keep growing. During the most recent election cycle, eight states adopted cannabis legislation.

No recreational marijuana law requires landlords to allow pot smoking in rental properties. In fact, Colorado’s Amendment 64, California’s Proposition 64 and Alaska’s  statute AS 17.38.120(d) all specifically allow a landlord to forbid it.

Chapter 475B of the Oregon revised statutes doesn’t mention the landlord’s right to prohibit marijuana smoking, but it does reaffirm the landlord’s right to prohibit smoking in general. Laws in Massachusetts and D.C., allow tenants to smoke pot unless landlords specifically prohibit it in a lease clause.

Landlords Have the Final Say

Simply put, smoking substances like cigarettes or marijuana inside a home will cause excessive damage to the walls, carpets, almost everything else. As such, a landlord can prohibit smoking in and around the property.

Because of the inherent property damage caused by smoke, renters can smoke marijuana in a rental only if the landlord says they can, unless they don’t mind paying for new carpet and new paint.

However, landlords who don’t allow pot still need to be explicit. Leaving the question open, or unmentioned in the lease, can put a landlord at a disadvantage.

Here are three reasons why landlords need to specify if pot is allowed:

  1. No Smoking in Public
    No state allows marijuana smoking in public, so the next best place to smoke is at home. If it’s legal to use cannabis, tenants can regard efforts to make them stop as interference with quiet enjoyment. That is, of course, unless they agree not to smoke before moving in.
  2. Not a Priority
    Cannabis legalization changes law enforcement priorities. In a dispute over marijuana use, police cannot—or are at least unlikely to—get involved unless someone is breaking another law. This is a sea change from the days when possession was a crime. In the absence of a prohibition in the lease, you cannot use cannabis usage as grounds for legal action or eviction.
  3. Allowed by Default
    Most laws specifically allow consumption of marijuana products in a rental property. A landlord can prohibit it only in a lease clause that regulates smoking or prohibits illegal activity (as a Class I narcotic, marijuana is illegal at the federal level).

You Can Ban Marijuana, but Keep Two Things in Mind

  1. Allowing marijuana use—like allowing pets or tobacco—increases the pool of possible renters.
    States with cannabis laws have a growing pot-centered tourist and transient population, Marijuana is big business. Sales of marijuana in the United States totaled $2.7 billion in 2015, and that’s before California legalized it. Some hotels and bed and breakfasts in Colorado, Oregon, and Washington make a selling point of being pot-friendly, and it pays off.
  2. Rejecting a prospective renter based solely on cannabis use could be discriminatory.
    People with medical marijuana prescriptions have persistent medical conditions. The Fair Housing Act might protect them since it prohibits discrimination based on disability. Marijuana is still illegal under federal law, though, so it’s not clear how a court would rule, but who wants to test it?

It’s Essential to Put It in the Lease

A landlord is in a stronger position when they put the rules in writing. The lease doesn’t have to ban marijuana use outright, although that’s always an option. It could require tenants to get written permission from the landlord before smoking cannabis on the premises. It could also allow use only in certain locations on the premises and specify where those are.

Two Ways to Incorporate a Marijuana Prohibition

  1. Ban Smoking Completely
    Because of the problems associated with secondhand smoke and the risk of fire, it’s common to include a lease clause that prohibits smoking. The clause can mention both tobacco and marijuana.
  2. Ban Illegal Activity
    You can also mention cannabis consumption in a clause that prohibits any activities on the premises that violate federal laws. That’s taking a harder line, but it dispels any uncertainty about pot’s legal status in the rental. This is the best option for landlords who choose to allow tobacco use in rental properties.

Consider a Pot Addendum

Some landlords attach an addendum to the lease. This is typically a separate page that the renter initials or signs. If the landlord chooses to ban marijuana use, the addendum states the reasons for the ban and the penalties for violating it.

If the landlord opts for a partial ban, the addendum outlines the conditions under which renters can use cannabis. Perhaps they can consume edibles, but not smoke or vape. If so, the addendum states that.

Be Aware of Disabilities

If a renter has a documented disability which requires the use of medical marijuana, it would be unwise to prohibit it’s use. However, since there are multiple ways to consume medical marijuana (including synthetic pills), a landlord could still prohibit “smoking” and anything else that damages the property.

Familiarize Yourself with the Pot Laws in Your State

As cannabis becomes legal in state after state, the stigma associated with pot use is quickly disappearing. Some people use it as a medicine and others as a social tool, like alcohol. You may not like marijuana or condone its use. But if you’re in a pot-friendly state, there are probably many people who do.

If you want to prohibit marijuana, do it in a way that conforms to state laws. To do that, it’s a good idea to get a copy of the relevant laws and read them.

The 411 on the 420—Can Tenants Smoke Marijuana in Your Rental?

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