When it comes to landlords dealing with tenants who own, grow, and/or use marijuana throughout the U.S., landlords have the right, at least theoretically, to ban any possession of marijuana on their premises, as long as cannabis continues to be a “Schedule 1” controlled substance under the federal Controlled Substances Act. A prohibition could even extend to so-called “medical marijuana,” now legal in 23 states and the District of Columbia.
The fact that the current administration has chosen not to fully enforce federal marijuana laws in states that permit some use of marijuana does not eliminate the exposure for landlords.
Even if marijuana should become legal under federal law, landlords would still be free in most jurisdictions to include “no smoking” clauses in leases. Such clauses would not necessarily stop tenants from having or using pot, which can be ingested in a variety of ways, but they would address the most hazardous use, which can combine burning embers with impaired senses.
What has changed, of course, are opinions about marijuana among members of the general public, including potential tenants. While it’s still possible to ban marijuana possession on one’s premises, whether such a ban is enforceable or desirable is another matter.
In light of the growing support for legalization or decriminalization of marijuana, landlords find it increasingly difficult to get a court to enforce an eviction over marijuana possession, especially over a first offense, so to speak. (Four states—Colorado, Oregon, Washington, and Alaska—have legalized possession of limited amounts of marijuana for recreational use. D.C voters enacted a legalization measure, but it was overruled by Congress.)
Lease restrictions on marijuana will also cut rental properties off from a growing section of the market that, far from being stereotypical “potheads,” include growing numbers of older professionals who may have used marijuana recreationally for years.
Moreover, the rental market also includes people with severe illnesses and injuries who rely on doctor-prescribed cannabis for relief. It would be awkward and probably illegal for a landlord to impose lease conditions on a prescription medication that is otherwise legal.
The question then becomes: How do landlords accommodate moderate marijuana use without putting themselves or their properties at risk?
The first thing landlords need to realize is that their insurance carriers are also in a difficult position. Given that cannabis...