Mortgage101 on Landlords and Medical Marijuana

We’ve seen the DEA tactic in California: threaten the landlords who rent to marijuana dispensaries, which are legal under California’s Prop 215, but illegal under federal law.

Back in my home state of Idaho, my county sheriff proposed requiring all landlords to drug-test all prospective tenants, because, I suppose, there aren’t enough homeless drug addicts in America.

So as our nation slowly reawakens to her hemp roots, as more states pass decriminalization and medical marijuana laws, more landlords are caught in a bind between showing compassion by renting to a state-authorized medical marijuana patient and breaking a federal law by aiding and abetting in growing and storing a controlled substance.

I found this question-and-answer segment on a website called Mortgage 101, and the answer was surprisingly rational!

Q: I have always included a clause in my leases that says if tenants use drugs on the property, they’re out. I recently smelled marijuana coming from the apartment of a tenant who moved in a few months ago. When I confronted this tenant, he claimed he uses marijuana for medical reasons, and said that because even the police won’t arrest him for his use, I have to allow him to use it and continue to live here. Is he right? –Dale S.

A: If you want to stick to your guns, you’ll find several strong legal arguments to back you up. Under federal law, possession of marijuana is still illegal, even in the several states that have passed “compassionate use” laws. These laws protect people who use marijuana under a doctor’s recommendation from criminal prosecution under state statutes. They do not attempt to tell private citizens, such as landlords or employers, how they must react when employees or tenants use the drug on the job or in rented premises; nor do they elevate marijuana to the status of a prescription drug.

Let’s assume that your tenant meets the definition of a disabled person: He has or is regarded as having a physical or mental disability that substantially limits one or more major life activities. He’d be within his rights to expect you to be reasonably accommodating — for example, to regularly remind him of when the rent is due or forgive occasional tardiness if his prescription medication makes him prone to forgetfulness. But many would agree with you that as long as marijuana possession remains illegal under federal law, requiring you to permit its use on your property would be an unreasonable accommodation.

Before you conclude that might and right are on your side, however, give this some more thought. First, is this tenant’s use causing any problems? If you’re observing hoards of nighttime visitors, presumably supplying your tenant (or joining him), then you’re dealing with a party, not a prescription, which no compassionate use law will insist that you tolerate. Or, is your tenant acting bizarrely, leading you to believe he’s in a deep and constant marijuana daze? Again, you aren’t required to host such behavior on your property. But if your tenant is in all respects a neighborly, conscientious, rent-paying resident, it’s beginning to look like no harm, no foul.

Assuming your tenant is disabled and has a doctor who has recommended marijuana use, where do you expect him to use it? If every landlord evicts him for simply using the drug, he’ll be relegated to “back alley” locations in order to not become homeless. The voters in your state probably didn’t have that consequence in mind when they exempted medical use from prosecution under state laws. Maybe the truly compassionate thing to do would be to talk with your tenant and explore how he can meet his needs in a more discreet manner — he could start by closing the windows.