With 17 states, including the District of Columbia, across the country legalizing medical marijuana and 10 more having similar legislation up for debate, rental property owners face an interesting new dilemma—how do you support newly minted state laws without violating federal ones? How do you protect your rental property and your other tenants from exposure? What are your rights, in keeping with FHA and ADA or do they apply? Does the law provide you any protection?
Who knew a little legal pot usage could raise so many questions? We’ve asked experts at the Marijuana Policy Project to weigh in—below you’ll find answers to the big questions in a great Q &A.
Q1. Do landlords have a right to refuse tenants who have legally obtained permission to use medical marijuana? Does it violate ADA or FHA?
Most states have not laid out clear housing laws in regard to the use of medical marijuana, but it seems likely a private landlord can refuse to rent to a tenant who uses medical marijuana, cultivates, and possesses the substance in the rental. However, if the patient does not use the substance in the rental it seems unlikely the landlord can simply discriminate against the potential tenant. Delaware, Maine, Arizona, and Rhode Island, have employed fairly explicit housing protections in their medical marijuana legislation stating; “No school or landlord may refuse to enroll or lease to and may not otherwise penalize a person solely for his status as a cardholder.” Additionally, it might be important for a landlord to weigh the potential negative ramifications for refusing to rent to medical marijuana patients, if every landlord in the state refused to rent to patients, where would these people live? Are there alternative solutions? Maine’s law explicitly allows a landlord to prohibit the smoking of marijuana for medical purposes on the premises if the landlord prohibits all smoking on the premises and posts notice to that effect. However, a restriction such as this would still allow qualifying patients to ingest their medicine using vaporization or other methods, such as consuming marijuana in food, teas, and tinctures.
Q2. Can a landlord stipulate that the growing of medical marijuana is prohibited on their property even if the tenant has a grower’s license?
Considering there is no previous cases addressing the issue it seems likely a landlord may include a non-cultivation stipulation in a lease, even for a state-legal medical marijuana patient. But again, this poses an interesting dilemma for landlords–even if refusing to lease to patients who cultivate is lawful, it might also generate a public outcry and would again be bad public policy. In Michigan, the ACLU took on the case of Lori Montroy, a stage-4 brain cancer patient evicted for growing medical marijuana plants in her closet, producing a round of bad press for the housing company.
Q3. Is a person using medical marijuana required to disclose this information to their landlord?
There is no reason to think that a qualified patient would be required to disclose this information to a prospective or current landlord, especially if it is only information about patient status. None of the medical marijuana laws include any provisions requiring such a disclosure. On the contrary, the laws generally include provisions guaranteeing a qualified patient’s confidentiality by prohibiting unauthorized persons from accessing state databases that track patient medical information. Ideally, if a landlord finds out one of his or her tenants is involved in marijuana-related activity, then it is appropriate for the landlord to ask the tenant if he or she is a qualified patient, and to then ask to see proper documentation.
Q4. What legal obligations does a landlord have if the tenant violates the terms of their prescription, is in possession of more marijuana than they should or violates the usage stipulations, to report it to the police? Is the landlord liable?
A landlord is not a police officer. He or she does not have an obligation to police his or her tenants and does not need to seek out information on the behavior of a tenant if there is no reasonable cause to suspect that the tenant is doing something outside the bounds of state law. However, if a landlord does find out that a qualified patient is diverting marijuana to unauthorized persons, then the landlord should deal with that situation in the same way they would deal with a recreational marijuana dealer tenant.
Q5. Is the landlord liable for damage to the property or the tenant? For example, if a tenant slips and falls under the influence of alcohol or other forms of drugs generally the landlord isn’t liable if there was no negligence on the landlord’s part.
There is no relevant case law about this issue specifically relating to medical marijuana, and landlord liability differs by state. However, it seems very unlikely that a landlord would be held liable at all for damage to the tenant or property that the tenant caused while using his or her medicine as a state-legal qualified patient. Among other reasons, this is because an injury to a tenant or damage to the property by a medical marijuana patient tenant would likely not be reasonably foreseeable, and thus, there would not be a duty of care in that context.
Q6. What should a landlord do if other tenants complain of the smell or express concern?
Before taking any action such as threatening to call the police or evict, a landlord should approach a tenant and have a discussion about how the tenant can reduce the effects of his or her medical marijuana use on other residents of the building. The tenant and the landlord can strategize about methods to reduce or eliminate marijuana smoke entering other apartments. Hopefully, the landlord and patient can develop a plan that makes everyone happy, just as landlords have across the country, especially in California, where there are 300,000-700,000 medical marijuana patients, many of whom successfully live in apartment buildings.
Q7. What happens to a landlord who knowingly rents to a medical marijuana patient if the federal government (though probably unlikely) takes action?
It is extremely unlikely that the federal government would take criminal action against an individual medical marijuana patient who is obeying state law. Even under President Bush, who actively opposed medical marijuana laws, the DEA did not raid individual state-legal medical marijuana patients possessing small amounts of marijuana and plants. In 2009, the Department of Justice issued a memo that crystallized a policy that President Obama had articulated on the campaign trail. The memo states, “prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources.”
Q8. What are some resources landlords can use to educate themselves about medical marijuana and the patients that use it?
*The Marijuana Policy Project (MPP) has a memorandum that specifically addresses civil protections in the 17 effective medical marijuana laws, which can be found at http://www.mpp.org/assets/pdfs/MedicalMarijuanaLaws-Civil-ProtectionsMay2011.pdf.
*MPP has a library that includes lots of documents about the medical value of marijuana and the specifics of the state laws guiding its use. It can be found at www.mpp.org/library.
*There is also a document specifically about medical research found at www.mpp.org/research.
*Procon.org also has a nice review of the different laws. http://medicalmarijuana.procon.org/view.resource.php?resourceID=000881.
*Also, the state-sponsored Center for Medicinal Cannabis Research has a number of excellent new studies on the medical value of marijuana. http://www.cmcr.ucsd.edu/.
LEGAL DISCLAIMER: READ CAREFULLY: This article is being provided as a courtesy to ARPOLA. The interviewee, Noah Mamber and his organization the Marijuana Policy Project, expressly disclaim all liability in connection with actions taken or not taken based on any or all of the contents or information accessible through this article or site. The information provided is not considered legal advice and is given only for landlords to consider provisions which may or may not be permissible in the jurisdiction where the rental property is located. Legislation regarding the issue varies by state. ALWAYS SEEK THE ADVICE OF COMPETENT LEGAL COUNSEL BEFORE DRAFTING OR ENTERING INTO ANY CONTRACT.