Medical Marijuana In Rental Housing

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By Jill Broadhurst, East Bay Rental Housing Association

Rental property owners in California constantly have new laws to consider, both annually by the state and intermittently by local councils. Many of these laws become gray, as they may conflict with another law, such as state smoking laws and house rules prescribed by the rental property owner.

Recall that voters in California passed the Compassionate Users Act in 1996, which allows doctors to prescribe marijuana for medical purposes. Medical marijuana cardholders have the right, under state law, to have six full-size plants or 12 seedlings (and local jurisdictions may allow for more than that). Holding such a card also allows for smoking the product.

But California law also states that an owner has a duty to protect tenants from behavior that affects how they live on the property. One way to do this is by having a sound, updated lease that protects residents and the landlord’s assets and makes clear what the house rules are.

For example, a landlord can try to prohibit renters from growing marijuana or smoking it by including the rule as a clause in the lease. Many rental property owners do have such no-smoking policies in their buildings, as most residents these days are sensitive to smoke in their living space and owners are keen to avoid the damage smoke can cause.

But such a policy—for resident holding a medical marijuana card—can be adversely affected by the right to grow and smoke. Depending on local just-cause provisions, and a city’s overall stance on marijuana, eviction of such a tenant may require consultation with a lawyer. (Suggesting that the medical card holder ingest marijuana versus smoking it may provide a workable solution for all sides.) If the issue comes up after the lease has been signed without such a clause, the landlord would likely need to rely on an anti-drug or anticrime policy, if such wording were included in the lease.

If an owner tries to evict a tenant based on growing in the unit, most judges and juries will recognize the risk of mold and threat of electrical fires that could jeopardize an entire structure full of residents and would not be apt to allow for such reckless behavior.

However, should an owner in Alameda County try to evict a tenant for smoking marijuana, chances are the owner will lose. Though much is dependent on the judges and jury who fill the courtroom, the tolerance for this type of smoking can elicit great empathy, depending on the circumstance.

Marijuana is a larger issue for cities that have well-established business practices for those seeking to legally sell marijuana. With the product and materials coming to a California community near you, this can make for a scenario that owners will need to actively manage with residents, since there is always the threat of possible illegal and violent activity when selling is involved, for example, strangers coming in and out of housing complexes to purchase marijuana illegally from a tenant instead of at a registered grow house that has a city license.

About the Author
As executive director of the East Bay Rental Housing Association (EBRHA), Jill Broadhurst is responsible for the strategic goals of the organization, including its financial health, membership growth, educational curriculum, and service options. Founded in 1939, the EBRHA is a full-service nonprofit organization dedicated to promoting fair, safe, and well-maintained residential rental housing that is compliant with local ordinances and state and federal laws. Jill graduated from Saint Mary’s College in Moraga with a BS in business administration and economics and spent ten years in marketing, advertising, and project management for the food, brokerage, and online music industries.

This article will also appear in The VIEW, the quarterly publication jointly curated by the three Bay Area chapters of Commercial Real Estate Women (CREW)—CREW San Francisco, CREW East Bay, and CREW Silicon Valley. CREW is a nationwide business networking organization dedicated to the advancement of women in commercial real estate. For chapter news, events, and membership information, visit the Bay Area member organization websites at crewsf.org, creweastbay.org, and crewsv.org.

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