Today, the Associated Press, came out with an unsurprising story. The headline reads, "Marijuana use by US college students up, highest in 35 years." According to the story, nearly half of full-time college students admitted to smoking marijuana in the past year. There are currently 11 states in the union that have fully legalized recreational marijuana. Due to these policy changes many landlords will receive (if they have not already) a requests from tenants to use marijuana in their rental properties. Here are some thoughts on this predicament:
If It's Legal In California, Can I say No?
The short answer is yes. As a landlord you have the right to say no to marijuana. Just because California is one of the 11 states that have legalized recreational pot, does not mean that it can be smoked in your rental.
Marijuana is still considered to be a Schedule 1 substance under federal law. This very well might change in the future, but as for right now, the federal government still views it as an illegal substance. To this day, the possession, distribution, and manufacture of a Schedule 1 substance remains a federal offense.
Your tenant won't go to jail for smoking pot (at least not in California), but if it is being smoked in your rental it is cause to give a 3 Day Notice to Perform Covenant (Cure) or Quit. Your tenant is free to smoke at his friend's house, but not in your rental.
What About Edibles?
Marijuana comes in many different shapes, sizes and colors. Anything from gummy bears to brownies can be infused with weed. You can even make tea out of it!
Most landlords are not concerned with edibles because there is no smoke damage that comes along with consuming marijuana in a brownie.
How About A "Reasonable Accommodation"?
Some tenants will try to claim that medical marijuana should be classified as a "reasonable accommodation." According to HUD.gov:
"A reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with disabilities to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces, or to fulfill their program obligations."
One example of a legitimate reasonable accommodation is a service animal. For more information on service animals, feel free to read my article on them here. However, HUD published this memorandum which specifically says that medical marijuana use is prohibited in public housing even where the states have made it legal.
The logic is pretty simple; Marijuana is an illegal substance under federal law and therefore federal law will not be used to protect those who use the illegal substance. Ultimately, federal law does not protect those who smoke weed even if it is for "medicinal purposes."
Why Property Managers Should Never Allow Smoking
Proposition 65, which was passed by the voters as the "Safe Drinking Water and Toxic Enforcement Act" has real life implications for smoking anywhere inside property boundaries.
The proposition is worded in such a way that if a property management company knowingly lets someone smoke (even outside) that area becomes a "designated smoking area."
In some cases, designated smoking areas are required by law to have signage that warn people of the dangers of smoking. The penalty for not having proper signage is $2,500/day retroactive for 1 year. For more information on Prop. 65, please feel free to read my article.
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