Can You Just Say No? Marijuana and Landlords

Marijuana is becoming legal in more states, which may make it tougher for landlords seeking to enforce their own bans.
As the movement to legalize marijuana blazes through the nation, landlords and building managers may be wondering whether the right to ban the drug from their properties is going up in smoke. The truth around the issue is a bi hazy.
State laws legalizing some form of pot use don’t prevent landlords from writing lease agreements prohibiting marijuana on their properties. “If a landlord does not want marijuana cultivated, grown, or used on the property, the lease should directly address this and state such prohibition,” says Lesley Walker, associate counsel for the National Association of REALTORS®. “For existing lease agreements, a landlord could consider having tenants sign an addendm that specifically addresses the presence and use of marijuana on the property.”
But the laws don’t necessarily support such agreements either. When a state law says no person shall be penalized for using marijuana, does evicting a tenant who violates a property owner’s no-pot policy constitute a penalty? The question is still being tested in the legal system, but housing experts say state courts are likely to err on the side of “yes”. So for landlords and property managers, there’s real concern not only about creating a zero-tolerance policy but also about enforcing one.
Twenty-three states and the District of Columbia have legalized medical marijuana, and four of those states- Alaska, Colorado, Oregon, and Washington- have also legalized recreational pot. (Voters in D.C. also approved recreational marijuana in November, but the measure was struck down by Congress.) And while no state explicitly requires landlords to accomodate tenants who wish to use the drug at home, many of these states prohibit landlords from discriminating against medical marijuana patients by refusing to rent to them.
Still marijuana laws are in flux. The federal government, which has long held that any form of pot use is illegal, effectively ended ints ban on medical marijuana in late December after President Barack Obama signed a bill prohibiting federal funds from being spent to prosecute medical marijuana users. This may change the situation in California, for example, where residents with medical conditions have the right to “full and equal accommodations” in housing. Before the recent federal change, such protection didn’t necessarily include medical marijuana, says June Barlow, general counsel for the California Association of REALTORS®. But the new law could lead to medical marijuana accommodations in California.
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By: Graham Wood (REALTORMag.REALTOR.org)