The Landlord’s Guide to U.S. Marijuana Laws
By: Brenton Hayden, Founder of Renters Warehouse, The Professional Landlords
It’s starting to look like marijuana legalization is the next inevitable issue in America today. Majorities across the nation -- even in some of the more conservative states -- favor rethinking our approach to weed. And with medical marijuana receiving 68 percent support from Minnesota voters in recent polling, it appears the great frozen north is also not immune to the allure of a newly legalized cash crop.
Despite a large and clear majority that wants legal marijuana for medical reasons, legalization is in limbo in Minnesota thanks to a sticky political situation whipped up by Governor Mark Dayton, who critics saybacked away from a legalization agreement at the last moment. But for landlords, the situation is even more murky. With legalization, there are lots of questions as to what the new laws will mean, particularly since certain states appear bent on contradicting the federal government.
Marijuana-Friendly States
Two states, Colorado and Washington, are the first to come to mind when we talk about how marijuana legalization affects landlords, because these are the two big test cases that have adopted full-blown legalization measures. Here, marijuana is taxed and regulated just like alcohol, which means there are some important developments landlords need to take note of.
For the record, this is not legal advice. But if you want to stay on the safe side, ban smoking indoors and make sure to stipulate that production and distribution of drugs, in violation of state or federal laws, is a violation of the lease. The standard federal drug-free lease addendum should suffice. That way, changes in state law will not require changes to your lease documents.
But if you’re one of the landlords who is okay with marijuana use, pay attention.
Nothing in either Washington or Colorado law says that landlords cannot ban smoking indoors. However, it may be more difficult to evict tenants for marijuana use unless there are multiple complaints. As things are now, there is a conflict between the right to your tenants’ quiet enjoyment and your interests in maintaining the value of your property, and the matter has not yet been settled by the courts.
If you’re a landlord who is okay with marijuana use, legalization also allows residents in these states to grow their own marijuana plants. But be warned, this can cause serious problems in leased apartments, which were not built to be greenhouses. Indoor marijuana growing could lead to mold remediation expenses, strong odors that can be detected throughout the building and a high volume of traffic if a grower is also selling. It’s best to specify that marijuana production in your apartments is off limits.
Medical Marijuana Allowances
Even though medical marijuana has much more support than full-on legalization, landlords can find themselves in trouble here too. Marijuana is still a Schedule I drug, and indoor gardens can still damage rental units, so much of the same advice from the section above still applies.
Landlords are still free to ban smoking, ban drug use and ban production of marijuana, even if a tenant has a valid marijuana prescription. However, this often is not disclosed by prospective tenants up front. And if you find out about it, this raises another problem entirely.
Federal law says that if you knew drugs were being produced or distributed on your property, it is up for seizure and could be forfeited. So tread lightly. Some landlords who get a smell complaint won’t want to evict a tenant for using medical marijuana, particularly if that tenant is disabled. Since there is very little legal precedent to guide us on this issue, let me share the experience of a landlord I know in Wisconsin.
After discovering that a wounded Iraq veteran renting a duplex had been using marijuana to help with his post-traumatic stress disorder, my friend decided that he would not feel right evicting his tenant, but was very concerned that the couple living next door would be disturbed by the smell of marijuana smoke.
“Instead of evicting the guy and possibly getting sued, I bought him a vaporizer and asked him to use it near a back window on the other side of the duplex,” he told me.
And wouldn’t you know, he never had any problem at all. Not only were there never any complaints, the unit never smelled of smoke again. None of which is to say you should tolerate flagrant lease violations or drug use on your property if you’re adamantly opposed to all that. Again, it’s up to you.
Marijuana-Friendly Properties & Communities
One way to help make sure marijuana use does not disturb non-smoker tenants is to designate whole buildings as marijuana-friendly. Discuss the issue up front with prospective tenants, especially in states like Colorado and Washington. Although, make sure they know that growing and selling are not okay. This way, you’ll keep your weed-happy renters segregated away from folks who would rather not be exposed.
However, the vast majority of marijuana use does not trigger complaints because most people are private about how they consume the drug. For every noisy, smoke-filled college party that gets busted by the cops there are 50 people who just want to smoke a joint at the end of a hard work day, and they would consider that part of their right to quiet enjoyment of their apartment.
There are very few steps to making a property marijuana-friendly once you’ve taken care of the leasing arrangements and figured out where you want to put these tenants. However, you may want to ensure the tenants are changing out their air filters regularly. Dirty filters can lead to mold in the vents, and more costs for you. It’s also a good idea to keep an eye out for highly-trafficked apartments, as this can be a sign of drug dealing and a danger to your other tenants.
Frequently Asked Questions
1. Q: What percent of the population uses marijuana recreationally?
A:According to the polling firm Gallup, about 38 percent of Americans say they have tried marijuana at least once. Younger people tend to use it more frequently, but middle-aged people tend to have longer histories of marijuana use.
2. Q: Are other states actually considering legalizing marijuana? Is this the future?
A: Yes, other states are actually considering marijuana legalization. It could happenas soon as 2016 in California, and if the issue’s current momentum is any guide, virtually everyone else will follow in the coming decade.
3. Q: Is growing marijuana for recreational use legal now, too?
A: Yes, it is in Colorado and Washington. However, as a landlord you do not have to allow this on your property. In fact, it’s a good idea to make sure your lease bans it.
4. Q: How will the legalization of marijuana affect my tenant-screening process?
A: If you choose to allow marijuana use on your property, your lease will have to change and your leasing agents should discuss this up front with residents. You may also want to give second thoughts to denying a potential tenant based on a marijuana possession charge, because the courts are unclear on whether this would be acceptable.
5. Q: Do I need additional property protection services because of the legalization of marijuana?
A: No. Just make sure your lease does not allow growing or distribution of marijuana.
6. Q: I can forbid smoking cigarettes in units, so can I forbid smoking marijuana as well?
A: Yes, always, no matter what. It’s your property.
7. Q: I smelled marijuana on my property and think I saw someone smoking it. What should I do?
A: Nothing, unless the police get involved, there’s a complaint or you believe an unsafe situation is developing. If you’ve forbid smoking marijuana in the unit in writing, approach the tenant privately. If you haven’t forbid it expressly, but dislike the smell and think it may bother other tenants, suggest a less conspicuous alternative such as using a vaporizer.
8. Q: Is it possible that one of my tenants could overdose on marijuana and die?
A: There has not been a single recorded death due to marijuana overdose in medical history, which means it is, in fact, safer than alcohol.
9. Q: What if I suspect one of my tenants of selling marijuana?
A: Report any potentially criminal activity to the police, but don’t expect them to make arrests if they only find a small amount of marijuana. Many states have formally or informally decriminalized certain quantities of the drug, including Texas, so you may need more than just that to get an eviction.
10. Q: Does marijuana smoke permanently damage apartments?
A: Any indoor smoking leaves residue on nearby surfaces, so a heavy marijuana smoker’s apartment would likely need the same attention you would give any smoke remediation job. However, the sweet smell of marijuana does not linger like the rotten smell of tobacco, which can often be detected in apartments for years after a cigarette smoker leaves.
Conclusion
Though some will try to turn back the clock, marijuana legalization is only progressing and the defenders of prohibition are falling ever more silent. In the next decade, we can expect to see more states legalizing the drug and regulating it like alcohol, just like Colorado and Washington. It’s only a matter of time before legalization is banging on Minnesota’s door.
Legalization ultimately helps fund the schools, cuts down on organized crime and goes a long way toward fixing the horrible racial disparity in American prisons, a driving cause of poverty in minority communities.
No matter where you stand on the issue, the time is now to start preparing for the tenants of tomorrow, many of whom will absolutely be 4.20 friendly.