Marijuana: Should California Landlords Allow Tenants to Smoke & Grow it?
With California and several other states legalizing the recreational use of marijuana, many landlords are understandably confused by conflicting state and federal laws regarding its use, and if tenants with prescriptions for the medical use of marijuana entitles them to rights as a protected class under the Americans with Disabilities act.
Whether you personally approve or disapprove of the use of marijuana, it is undeniable that public opinion nationwide is shifting rapidly on the subject presenting a new set of circumstances landlords and property managers must deal with to protect both their property and their other tenants’ rights. It’s a complicated set of issues where new legal precedents are being established requiring extra effort for landlords to meet their duties and carefully think through and update their rental and lease agreements to ensure all tenants’ rights are met.
As 60s icon Bob Dylan once sang about evolving social norms, “Oh the times, they are a changing” – and landlords who do not change with the times can find themselves with outdated rental and lease agreements that no longer meets their duties as a property owner in the current legal environment.
Bottom Line, No Law Requires Landlords to Allow Marijuana Smoking
The smoking of any substance like cigarettes, cigars, vaping or marijuana in a rental unit can cause damage to walls, carpets and other surfaces where odors can accumulate. Just because pot is now legal does not necessarily mean it can be smoked in a rental unit, even for medical reasons.
Because of the inherent damages smoke can cause to a rental property, smoking of any kind can only be allowed if the landlord permits it. However, this needs to be carefully spelled out in the rental agreement because the term “smoking” has traditionally been used to designate tobacco rather than other substances now commonly being smoked creating a “hazy” situation for landlords and tenants alike.
Here’s a major catch that must be understood regarding California’s Proposition 64. Marijuana may not be smoked in public. Therefore, marijuana is usually smoked indoors where it can potentially cause harm to the property. If it is smoked outdoors it must be done so where it is not visible to the public.
Most commonly, tenant complaints to landlords regarding marijuana result from concerns about the smell and smoke in their living space which is why it is so important to address this issue because smoke and odors can be difficult to control.
Whether or not a tenant can be evicted for smoking all comes down to how carefully what is and is not allowed is spelled out in the rental or lease agreement, because violation of any terms of the agreement may be grounds for eviction. Because most landlords are still working with stale, outdated rental and lease agreements which do not address this new legal reality around a subject where there is so much confusion, it is paramount upon the landlord to fully think through their position and make sure the language in their agreement explicitly conveys their wishes.
There is no right or wrong approach regarding allowing or banning its use, so long as other tenant’s rights are protected from odors and secondhand smoke.
First, Ask Some Important Questions
On the one hand, with the legalization of recreational marijuana, many landlords in California, Colorado and Washington have created a lot of “buzz” advertising their properties as pot smoking friendly and have been rewarded with a wider tenant pool and higher, above market rents with this incentive.
If you do choose to go this route, there are still several limitations placed upon the use of marijuana in California under Proposition 64 regarding how much may be possessed or grown on a property – all of which need to be carefully thought through and addressed in the rental or lease contract.
More commonly a landlord who wishes to pursue the status quo will want to update and get signed a new rental or lease agreement that covers this new set of circumstances so tenants don’t mistakenly believe that just because marijuana is legal that means it is now ok to smoke or grow it in the rental unit.
It’s also important to consider the established medical uses of marijuana when arriving at your decision to allow it on your property. Many renters mistakenly believe that because it is legal for medical use, that allows them to smoke in the rental. Again, there I no law – even for medical use – that requires a landlord to allow the smoking of it in their rental
Keep in mind that because someone uses marijuana for medical uses with a prescription doesn’t necessarily mean they have to smoke it. Anywhere marijuana is legal for medical purposes it is usually also available in edible form. There is nothing in the Americans with Disabilities Act that requires a medication to be smoked to allow a “Reasonable accommodation” of a disability rather than taking it orally.
However, you need to be careful when screening potential tenants not rule out applicants because they use medical marijuana or that may leave the landlord open to discrimination complaints. Rejecting a prospective renter solely on the basis of cannabis use could be considered discriminatory.
Growing Marijuana on Rental Property for Personal Use
California’s Proposition 64 allows the growing of up to four plants for personal use. However, allowing marijuana to be grown on your rental property is a more complicated situation than merely allowing it to be smoked for several reasons.
Marijuana can be grown both outdoors and indoors, but may not be grown in public view. The outdoor growing of marijuana if not in a secure location can lead to trespass and thievery at harvest time in fall.
Whether marijuana is grown indoors or outdoors, it does produce an odor which is either a sweet smell or a stench depending upon the nose of the person smelling it. The strength of the smell can vary depending upon the strain being grown – such as “Skunk weed” – and how hot it is in the area in which it is being grown.
More heat on hotter days results in more smell which can peak around harvest time in fall when the plants are the largest and in full bloom that may not be an issue earlier in the year. If this proves to be an issue later in the year in the period leading up to harvest time, that’s when the grower will want to give up their plants the least!
Growing marijuana indoors usually involves modifications to the property to deal with increased humidity, mold, ventilation, and perhaps most significantly increased electrical usage and fire hazards from grow lights. There can also be damages from dirt to the surrounding areas.
Most standard rental agreements and leases state that tenants are not allowed to make alterations to the property without the landlord’s permission. So, it needs to be made very clear in the rental or lease agreement that these types of modification are only allowed with the landlord’s express permission, and that the landlord has the right to periodically inspect the property on a regular basis so long as adequate 24-hour notice is provided before doing so.
Failure to allow periodic inspection of the property with adequate notice is grounds for eviction.
“Disjointed” Conflicting State and Federal Laws
Despite the growing trend of medical and recreational use of marijuana becoming legal in California and many other states across the country – and that this trend in all likelihood is expected to continue – marijuana continues to be illegal under federal laws.
The supremacy clause of the U.S. Constitution says that states may not enact laws that conflict with federal law. However, on this issue states across the country have been doing it nonetheless.
This disjointed situation that currently exists where federal law technically reigns supreme, but where in reality, most housing laws are enacted at the state and local level results in a marijuana policy that is legal under one set of laws that can be illegal under another.
Until now, the federal government’s policy to date has been to essentially turn a blind eye to this practice. Whether or not that continues, or if federal legislation that is being proposed to reform marijuana laws on a national level is enacted, where this conflict between state and local laws comes into sharp focus and presents a potential mine field for California landlords until these issues are resolved is around the commercial growing and sale of marijuana.
Growing Marijuana on Rental Property for Commercial Use
When it comes to larger scale commercial growing of marijuana landlords in California are receiving well above market rates for the rental of their properties which can be extremely lucrative. However, this comes with a lot of potential downside risks in a field where state and federal laws are still in conflict, and county and city ordinances are still being worked out and changing from year to year. Here, navigating the political mine field can be infinitely more difficult for landlords than a grower bringing in a successful, profitable harvest!
County and city ordinances regarding commercial marijuana growing vary widely from county to county with a very wide degree of risk or tolerance for a landlord renting property to commercial growers. The first step is to thoroughly research local ordinances which can be very complicated and keeping in mind these can change entirely from year to year as this industry becomes normalized.
For example, one hurdle for obtaining local permits to grow marijuana on a commercial basis is a frequent requirement for growers to state previous years sources of income. Because marijuana growing has been illegal, most growers haven’t filed state or federal income taxes in full for their profits from growing, and are reluctant to admit that without putting themselves in legal jeopardy for tax evasion in previous years.
This is just one of the many types of regulatory hurdles landlords need to fully research and understand before allowing their property to be used for the new commercial marijuana industry.
For more background on renting to a dispensary for the sale and distribution see
Landlords Must Stay Current and Up to Date
Whether you are personally for or against the use of marijuana, it is undeniable that attitudes and laws across the country are rapidly shifting regarding its use. This requires landlords to update their thinking, rewrite their rental or lease agreements to stay current. Most of all it requires landlords to have clarity regarding what they allow on their property in an area where there is a lot of confusion regarding what is and is not permissible.
Bottom line, it’s the landlord’s choice. No one or no laws require a landlord to permit marijuana smoking or growing on your property. But that may require an extra effort on the part of a landlord to make clear their position and leave nothing to chance to ensure the rights of all tenants are honored from second hand smoke and odors, and their property is protected from unwanted smoke damage that may last longer than the tenant is residing in the rental unit.
At Fast Eviction Service, help on any of the issues discussed in this article is simply a click or phone call away. Email firstname.lastname@example.org or call our office at (800) 686-8686 to discuss your questions for a free evaluation of your case.
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Filed under: Landlord Legal Issues