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You pride yourself in being a good landlord.  You keep current on landlord-tenant laws to always be well informed.

But sometimes the laws and rules are clear as mud.

In order to avoid getting into hot water, it’s important to be aware of tenants’ rights.  However, problems arise when the laws, and consequently the tenants’ rights, aren’t entirely clear.  This can happen when changes are being made to current legislation, or interpretation of laws is evolving through case law.

Take the messy legal situation surrounding marijuana.  Currently, it’s legal for adults aged 21 or older to use the drug for recreational purposes in Colorado, Washington and Alaska.  It’s also legal to use marijuana for medical purposes in 23 other states.  At the time of publication, medical marijuana is legal in Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island and Vermont.

In some of these states, it’s legal for users to grow their own plants as long as they are for personal use and growers follow the state specific rules.  But growing, selling, buying or consuming marijuana remains illegal by federal law.

To further confuse the issue, although still not legal, recreational marijuana use has been decriminalized in certain states.  This change in the law means anyone caught with marijuana may be given a fine, but they won’t be charged with a criminal offense if they are found with personal-use amounts of the drug.

Landlord-Tenant Laws and Marijuana

If using marijuana is legal according to state laws, tenants may of course want to use it in their residence.  The same applies if growing pot plants is legal in the state.  However, tenants should check the wording of their lease agreement.  If the landlord bans smoking, tenants are legally expected to follow the clauses, just like they are with cigarette smoking.  A change in legislation doesn’t automatically override current agreements or establish new tenants’ rights.

For example, unless specifically prohibited in writing, tenants in Colorado may smoke or use marijuana in their apartments as long as they are 21 or older.  They may also grow up to six marijuana plants as long as no more than three are fully mature.  Plants cannot be cultivated outside as they must be kept in an enclosed area.  The tenant may then legally possess the marijuana they have grown on the premises.

But the laws grow murkier from there.  For example, can landlords ban all uses of marijuana, even if the renter has a prescription?  Is that a violation of patients’ medical rights and treatment?  This is still being determined by the courts as lawsuits slowly start emerging.

What About the Landlord’s Rights?

As a landlord, it all comes down to having it in writing.  Landlords who are not hunky-dory with the smoking of legal marijuana in their rentals need to include a clause to that effect in their lease agreements.  Even in states that have legalized marijuana, it’s legal for landlords to disallow smoking inside their property (but not necessarily other uses, such as ingesting).  Landlords have the right to include a variety of clauses to their lease agreements; some choose to ban pets, tobacco smoking, roommates and more, even though these are otherwise legal for residents.  (See ezLandlordForms' Marijuana Addendum or Smoke-Free Rental Addendum.)

To further cover themselves, landlords can include a clause that bans illegal behavior according to both federal and state laws.  However, it’s always best to make clauses crystal clear – those who want to prohibit marijuana should have it spelled out.  Clear examples or a list of banned activities should be included, and landlords should understand that banning any type of marijuana use might not be enforceable in court.

Tenants Rights with Legal MarijuanaWhat Happens Next?

Marijuana laws are rapidly evolving in the United States.  For example, the use of marijuana will be legal in the state of Oregon as of July 1st 2015.  In 2016, expect the issue to come to voters in the states of California and Arizona.  Some states are still working on decriminalizing the drug; others are legalizing it for medical reasons only.  The Obama Administration has opted not to enforce federal marijuana laws in states that have legalized it, deciding not to pick a fight over states’ rights, but it is anyone’s guess what stance the next administration will take.

As more states legalize the use of marijuana, it may eventually become difficult for landlords to enforce clauses that prohibit the drug on their property.  In Colorado for example, some judges are already giving tenants the chance to remedy the situation instead of evicting for issues dealing with legal marijuana.  Tenants’ rights may become stronger – only time will tell. 

For now, it’s up to landlords to decide what they allow on their property.  As long as their lease agreements clearly address the issue, landlords can take a hard line stance if they wish, but be aware that enforcement may require a court battle with renters.

Related Reading:

Can Condo Associations Ban Marijuana Use, Even Where Legal?

The "Growing" Problem of Canadian Grow-Ops… And Why They ARE a Problem (check out the "guard bears")

Categories: Leasing Issues

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