We landlords have a new headache. Legal marijuana.
For those of us who lease properties in states like California, Colorado, Washington, Michigan and a growing number of others states, we now have to consider the issue that some form of medical marijuana or recreational marijuana is now legal.
On top of that, what is legal or not with regard to marijuana is constantly changing in multiple jurisdictions so landlords have to pay attention to what is going on where they own property.
While our leases have long held clauses such as “no illegal activity,” conflicting federal, state and even local laws are adding new challenges for property owners and landlords and their ability to control what a tenant does or does not do in their rental property. Marijuana is still illegal from a federal government standpoint and that may help landlords, but the issue is more complex.
While you may think a simple no-smoking policy will work, you still have the issues of edible marijuana such as “pot brownies” as well as tenants growing the plants themselves. Then, there are other ways to consume medical marijuana such as vaporizers.
While contract law in some states allows property owners to ban unwanted behaviors, including cigarette smoking or pet ownership, some landlords say they have been unsure whether the same rules apply for medical marijuana, which is used to treat health conditions they cannot always ask about. Also some states may allow growing a small number of plants in a residence for medical purposes which could bring up other issues for landlords such as mold.
Michelle Foley, who manages a townhouse community in Ann Arbor, Michigan, recently told lawmakers, according to Michigan Live, that she had two residents use their basements to grow medical marijuana.
While she did not try to terminate their lease, she did not allow them to renew. Still, the “pungent odor” lingered long after one tenant left. “We had to replace the carpeting throughout and we rented a commercial size ozone machine for five days,” Foley told the website, explaining that she spent an extra $280 cleaning the unit and lost out on roughly $1,900 in rent in the process. “The odor was still present so we had to have the ducts cleaned.”
Ok, so here is the tricky part, what is actually happening in these states? In Colorado the general trend is that smoking marijuana does not fall under the general “No Smoking” clause in your current lease. If you have a No Smoking Clause make sure it says NO Smoking and No Smoking Marijuana.
Medical patients rights as tenants and their marijuana use may be unresolved in housing laws, so any negative interaction with a tenant over marijuana is a negotiation.
Nothing in this blog post is intended as legal advice, merely thoughts for discussion and questions to prepare for your attorney. Always check with your real estate attorney to make sure you are up to date with current laws where your property is located.
Agree? Disagree? Let us know what you think in the Reply section below.
TIP: The American Lung Association offers great information for Landlords on how to make their buildings smoke free. Click HERE to see a sample Smoking Lease Addendum.
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