Medical Marijuana

Medical Marijuana

Colorado and Washington have now passed laws allowing for  recreational use of marijuana.  Eighteen other states and the District of Columbia have also legalized medical marijuana, and several states have legalized the use of medical marijuana. However, Federal laws still classify marijuana as an illegal drug.  This is why landlord aren’t required to allow “reasonable accommodation” for people with disabilities under the Federal Fair Housing Act at this point.

But regardless of which State your rental property is located, you can institute a no-smoking policy as long as you do not discriminate against a protected class in implementing and enforcing the policy.  In fact, we strongly endorse no-smoking clauses in rental lease agreements to help landlords deal with odor, fire and concerns for tenant health issues.

And if you have a tenant who are disabled and smoking marijuana medicinally and you live in a state where medical marijuana is not legal, you are not required to accommodate medical marijuana usage.

But things get a bit murky for landlords in States where medical marijuana use is permitted.  Under these State’s fair housing laws that medical marijuana use would require “reasonable accommodation” to be offered to tenants who could be using marijuana as part of their cancer treatment.  Because state medical marijuana laws conflict with federal laws, the enforceability and legal liability of any medical marijuana policy is in question.

There are some options in developing a medical marijuana policy, none of which should be considered fail safe:

  • Prohibit Use:  If you prohibit medical marijuana use, then you could get sued under State law for not providing a reasonable accommodation.
  • Allow Medical marijuana Use:  If you permit your tenants to use medical marijuana only if they qualify as disabled under fair housing law, which would not allow everyone with a medical marijuana card to smoke marijuana in your rental.  But then Feds could charge you under the federal laws for allowing pot use.
  • Allow medical marijuana with no limitations.

Consider consulting an attorney before developing your own medical Marijuana policy, specially if you live in a state with legal medical marijuana  is permitted.   And if you take Section 8 vouchers, check with your local Fair Housing about the rules.

What are your thoughts on the topic?  Feel free to share.