State laws on marijuana can vary enormously – from full legalization to total prohibition and other options in between.
For landlords drafting a lease agreement for future tenants, staying up-to-date on this issue and checking their local marijuana laws is essential.
What to Know About Marijuana Legalization and Lease Agreements
In the U.S., the laws around cannabis use have been changing state by state, and it doesn’t appear to be letting up.
Nearly 40 initiatives in 2016 across the country could lead to decriminalization or some cannabis legalization in certain states.
Five or more states look hopeful for full recreational and medical marijuana legalization if these initiatives pass. They would join the four states which have already legalized the drug.
How could this affect your business if you are a landlord in a state that has or may legalize cannabis use?
Better yet, what are some steps landlords can take to remain in control?
States that Prohibit Marijuana
Currently, 11 states ban all marijuana use. If a landlord lives in one of these states, the decision is final – the law treats marijuana like any other illegal drug.
Although they might not need to specifically address cannabis usage, it is vital in any lease agreement to include an anti-drug policy.
Here is an example of such a clause that can be included in a marijuana addendum when creating a lease agreement:
Using of cannabis and any other federally-prohibited drug is not allowed on the Premises. Further, tenants and their guest(s) will not engage in any illegal drug-related activity, including medical cannabis on or near the Premises. A landlord may terminate this Agreement if tenants and their guests engage in such activities. If tenants violate this rule, they are subject to charges, damages, and eviction. Tenant forfeits their security deposit if there is any evidence of smoking on the premises.
Even if a state currently has a ban on cannabis use, there is always a possibility that the laws will change in the future.
An anti-drug or crime policy in the lease agreement protects you if these laws change and helps you remedy any drug or crime-related problem.
States that Legalize Medical Marijuana
Twenty-three states and D.C. have legalized medical marijuana, which raises multiple questions for landlords who might have to negotiate their terms with a medical marijuana user.
If tenants use marijuana for medicinal purposes, can a landlord refuse to allow it inside their property?
Naree Chan, a legal consultant at LegalTemplates.net, explained:
“If a tenant insists on their right to use medical marijuana based on their disability, a landlord has the backing of the U.S. Supreme Court to stand their ground,”
Chan said.
“In the 2001 case of Oakland Cannabis Buyers’ Cooperative, the Court noted that the federal Controlled Substances Act does not carve out a medical necessity exception, even for a “seriously ill” patient.”
According to Chan, it is not discrimination if the landlord refuses to allow the use of medical marijuana.
Although it is illegal for a landlord to refuse a tenant because of their disability, the landlord has the right to refuse the use of a federally-banned drug on their property, medical treatment or not.
Smoking marijuana on a property might be a problem for a landlord, just as cigarettes would be.
Even though cigarettes are a legal substance nationwide, most enclosed public spaces – restaurants, bars, and private residences – have the right to ban smoking cigarettes inside.
The case for marijuana is no different.
“If landlords do not want new tenants to smoke medical or recreational marijuana on their property, they can easily include a few sentences in their lease agreement that prohibit them from smoking or using either tobacco or cannabis,”
Chan said.
“For existing lease agreements, landlords can ask tenants to sign a supplemental Smoking Addendum agreeing to the same.”
If smoking is the only issue, it’s essential to understand many different ways to administer medical marijuana.
Some popular ways to use medical marijuana other than smoking include using a vaporizer, eating edibles, or using cannabis tonics and extracts.
States that Legalize Recreational and Medical Marijuana
“Ultimately, the landlord has a lot of discretion on what does or does not happen on their property,”
Chan said.
Even if recreational and medical marijuana use is legal in the state, a federal ban is still in place on the drug; therefore, it is up to the landlord to decide what goes on their property.
Once the landlord has decided what types of cannabis use are agreeable, they should include a clause outlining those details.
Here are some marijuana addendum clauses that a landlord can include in a lease to specify the approved cannabis use:
- The use of tobacco and cannabis in accordance with state law is allowed on the Premises. Prior written consent from the Landlord is required before medical cannabis may be grown on the Premises.
- This is a non-smoking residence. Smoking, including medical marijuana, is prohibited inside the home or on the premises. However, consuming medical marijuana with a vaporizer or in cannabis edibles, tonics, or concentrates is permitted.
- No recreational or medical marijuana may be grown or consumed on the Premises by the Tenant(s) or guest(s) without the prior written consent of the Landlord.
Marketability is crucial when deciding the details of a lease agreement in states that have legalized marijuana.
There is a potential to lose business if a landlord restricts the usage of cannabis in a state that has legalized it.
Evicting a Tenant for Marijuana Use
There might be an instance when a landlord needs to evict a tenant who violated an anti-drug or anti-marijuana clause in a lease agreement.
If this occurs in a state where marijuana is banned, issuing an eviction notice to the tenant would be an appropriate line of action.
Even in states where recreational and medical marijuana are legal, the landlord has the right to evict tenants who violate the terms of their lease, regardless of the state’s marijuana laws.
“If a landlord’s lease prohibits unlawful conduct under state and federal law, marijuana is still illegal under the federal Controlled Substance Act,”
Chan said.
“The landlord has the right to evict [tenants] for violating the terms of their lease. If the landlord wants to outlaw all cannabis use entirely,”
Chan continues.
“They should include a broad and sweeping clause prohibiting all conduct that violates local, state, and federal laws.”
Marijuana laws will likely continue to change in the U.S., and it will be up to landlords to take matters into their own hands.
By staying informed and up-to-date on local laws, landlords can craft lease agreements and other legal documents that maintain their control over their property.
See United States v. Oakland Cannabis Buyers’ Coop. 532 U.S. 483, 494, n. 7 (2001).
