Under federal law, all forms of marijuana are illegal, including medical marijuana. But many states have marijuana laws that clash with federal law. Some states have fully legalized marijuana, while others punish possession with a fine instead of jail time). And over half the states allow the use of marijuana for medicinal purposes.
If you live in one of the states that allow medical marijuana, you generally must register with the state and obtain a medical marijuana card to use marijuana legally. To get a card, you normally have to have provide the state with a physician’s documentation of your qualifying medical condition. Qualifying medical conditions vary from state to state but often include conditions such as cancer, multiple sclerosis, and glaucoma.
Medical marijuana laws can be confusing, and many renters mistakenly believe that landlords have to allow medical marijuana smoking—even if the landlord has a no-smoking policy. But medical marijuana laws simply say that people who use marijuana in compliance with state law aren’t committing a crime; they don’t require landlords to allow smoking in rental properties. It was legal for landlords to prohibit on-premises smoking of all kinds of substances before medical marijuana laws came to be, and it remains so even after the enactment of such laws.
Many landlords and tenants are also confused about whether fair housing laws protect tenants with medical marijuana cards. Fair housing laws require landlords to accommodate people with disabilities, and, in order to accommodate tenants with disabilities, landlords sometimes have to make exceptions to their rules. For example, a landlord must make an exception to a no-pets policy for a blind tenant who has a guide dog.
Some medical marijuana card holders argue that their qualifying medical condition is a disability requiring an accommodation: an exception to the landlord’s no-smoking rule. This argument normally fails, though—a medical condition qualifying someone for a medical marijuana card isn’t necessarily a disability under fair housing laws. To win this kind of argument, tenants have to show that allowing them to smoke marijuana is the only way they can get the benefits of the drug. That showing is hard often to make in view of the many ways that people can ingest marijuana.
Another important point is that many landlords include language in their leases that prohibits illegal activity on the rental premises. Because medical marijuana is illegal under federal law, it’s covered by a lease’s “illegal activity” umbrella—smoking medical marijuana would violate the terms of the lease. Even if a lease doesn’t contain an “illegal activity” clause, it’s unlikely that any judge would require a landlord to allow a tenant to break federal law by smoking marijuana
Sure, landlords can ban medical marijuana smoking in their rentals. But may a landlord terminate a tenancy when a medical marijuana smoker lights up at a property with a clear no-smoking policy?
A clear no-smoking policy prohibits all forms of smoking—even smoking for medical reasons. If a landlord includes the no-smoking policy in the lease or rental agreement, the landlord can end the tenancy of or evict a tenant who smokes medical marijuana. The landlords’ options are not so clear if the no-smoking policy is part of the rental’s rules and regulations (instead of part of the lease or rental agreement). A landlord generally can terminate the tenancy of or evict a tenant for repeated or severe violations of the rules and regulations. Whether or not a tenant’s smoking of medical marijuana constitutes a repeated or severe violation depends on the specific facts of the situation.
In addition to pointing to the no-smoking policy, a landlord could attempt to end the tenancy or evict the tenant based on the lease’s “illegal activity” clause, noting that, under federal law, possessing and using marijuana is still a crime. A landlord who doesn’t have a no-smoking policy will have to rely solely on the “illegal activity” argument. Whether a judge will order an eviction on this basis alone will depend on the circumstances—many judges will hesitate when the activity is discrete and the tenant is otherwise blameless.
Prospective tenants who plan on smoking should ask about smoking policies before signing a lease or rental agreement. If you have a medical marijuana card, don’t be afraid to bring it up with a prospective landlord—the best possible result is that the landlord will allow it or make an exception, and the worst is that you will continue your search for the right rental. (If the landlord tells you that you’ll be able to smoke in your unit, try to get that statement in writing!) Don’t enter into a lease or rental agreement knowing that you’re going to violate its no-smoking rule. The potential legal hassle—including eviction—is worth your holding out for a rental that meets your needs.
The take-away for landlords is to incorporate solid no-smoking clauses into your leases or rental agreements, and enforce such clauses consistently. Doing so will also avoid having to fall back on the “illegal activity” argument, which might not be accepted by a judge who is loath to evict an otherwise law-abiding tenant.
