Attitudes toward marijuana use have shifted greatly in recent years. Eight states and the District of Columbia have passed legislation allowing for recreational marijuana use, and another two dozen states permit its use for medicinal purposes. Still, marijuana is considered an illegal substance under federal law.
This has created a hazy situation for landlords, property managers, and homeowners associations trying to decide whether or not to allow marijuana use. Marijuana use in rental properties seems benign enough to allow–but is it?
Here are six things to consider before creating a policy on marijuana use in rental properties:
- Is there a mortgage on the property? This is important because most loan documents contain language that requires the borrower to comply at all times with both state and federal laws. Because it’s still banned by the federal government, allowing marijuana use in rental properties could result in a breach of your loan documents.
- Have you accepted any public subsidies for your property? This includes everything from tax credits used for building renovations to residents who pay with Section 8 vouchers. These programs typically require full compliance with state and federal laws, so marijuana use in rental properties could be considered civil or criminal fraud.
- Who else could be at risk? It isn’t just the property owner who could be held liable for breach of state or federal laws. Homeowners associations, property managers. and other agents acting on behalf of the owner could also be held liable. All stakeholders should be involved in the conversation before determining whether or not to allow marijuana use in rental properties.
- Does your insurance company cover damage caused by illegal activities? Review your policy closely. For example, Colorado experienced a spike in apartment fires after it legalized recreational marijuana. Many of the fires were caused by tenants trying to condense marijuana into a concentrated form using butane. Your insurance company may not cover damages determined to be a result of marijuana use in rental properties, even if local laws allow it.
- Are you willing to pay for any costs associated with smoke damage? Units exposed to smoke–from marijuana, cigarettes, or otherwise–cost more to recover and maintain. Over time, smoke becomes embedded in the walls, carpets, and other permeable materials. It can require quite the effort to remove evidence of smoke altogether. This not only impacts the existing residents, but also future residents. Anyone who has asthma, emphysema, or other lung conditions may have difficulty breathing in a unit that has been exposed to smoke.
- How will marijuana use affect other residents? Unfortunately, smoke and smells cannot be contained to a single unit. Not only could this be a nuisance to other residents, but it may also impact their health. A growing body of evidence suggests that secondhand smoke easily infiltrates nearby units, and secondhand smoke can be as harmful to others as it is to the person who’s smoking! Allowing marijuana use in rental properties may open landlords, property managers, and homeowners associations to complaints–or worse, lawsuits if someone claims that secondhand smoke has caused them adverse health conditions.
State Laws on Marijuana Use in Rental Properties
As always, you’ll want to examine local, state, and federal laws closely before you determine whether or not to allow marijuana use in rental properties. Laws can vary drastically from state to state.
In Michigan, for instance, private property owners can refuse to rent to anyone who smokes or cultivates marijuana on the premises, as long as that’s stipulated up front in the lease agreement. In Massachusetts, landlords cannot prohibit the consumption of marijuana edibles or other non-smoking forms. In Rhode Island, no landlord may refuse to lease to or otherwise penalize someone for his or her status as a medical marijuana cardholder.
Once you adopt a policy, be sure that it’s enforced consistently:
“I would advise a landlord that you need to uniformly enforce the rule,” says Michigan lawyer Matthew Paletz. “You can’t just pick and choose, because then you could face some discriminatory blowback.”
Laws regarding marijuana use in rental properties can be a lot for new landlords or homeowners associations to wrap their heads around, particularly as the regulatory environment continues to change. An experienced property manager will be well-versed in these regulations and can help keep you protected.
Interested in speaking with a property manager in your area on these matters and more? All Property Management is here to help.
Amanda Maher is a self-proclaimed policy wonk who dabbles in real estate law. Amanda holds a B.S. in Political Science and Sociology from Boston University, as well as a Masters in Urban and Regional Policy from Northeastern.