Can landlords ban cannabis in a legal state? Here’s what the law saysAlexa PetersDecember 17, 2019
In August 2019, MassLive reported that a medically disabled couple in their 60s, Francine and Timothy Weinandy, were being evicted from their apartment complex near Springfield, Massachusetts, for smoking medical marijuana on their balcony. The couple had lived in the apartment for 26 years.
As more states go legal, evictions for smoking cannabis on rental property are on the rise.
In an email interview with the news outlet, Francine Weinandy said: “No one deserves to have their home taken away from them because of pot.”
Yet in the past year there have been several reports of people being evicted from their homes, located in cannabis-legal states, for smoking cannabis on rental property.
“This issue comes up quite regularly,” said Evan Loeffler, owner of Seattle-based Loeffler Law Group. He deals regularly with local landlord-tenant disputes. “I’ve represented a lot of residential landlords writing leases or dealing with tenants who either demand, insist, or deny the use of marijuana.”
So what are a tenant’s rights around consuming cannabis at a rental property in a legal medical or adult-use state?
It’s all about smoking
Like most things with cannabis, the answers live in the gap between state and federal laws. And there seem to be two categories of consumption: inhaled products, and everything else.
Landlord-tenant cannabis conflicts almost always center around inhaled products.
Edibles and topicals don’t affect other tenants, the building environment, or the unit. So if you’re operating on the private market, those forms of consumption are generally allowed. It’s a different story with public housing—about which, more later.
Landlord-tenant cannabis conflicts almost always center around inhaled products. And here, smoking usually always means all smoked substances. Even if you live in a legal adult-use state or have a medical card, if it is written in your lease agreement that you cannot smoke anything, that includes smoking cannabis. Your landlord—in almost every case—has the legal right to make and hold tenants to this demand.
‘Smoke gets in everything’
One of the most common reasons landlords legally forbid cannabis smoking on the property is because of the damage it can cause. Along with the skunky smell, which can cling to rugs and drapes, smoke of any sort leaves a sticky film on walls and ceilings that is hard to remove unless the rooms are re-painted.
It gets in the walls, the drapes, the carpet.
“[Smoke] gets in everything—it gets in the walls, ceiling, it gets in the drapes, carpets,” said Loeffler, who along with practicing landlord-tenant law, has been a private landlord himself.
Plus, people who smoke sometimes drop ash that burns the carpet. So, you have to essentially fumigate, re-paint, and re-carpet whenever you have a smoker move out,” said Loeffler.
In the end, landlords have the right to set the terms of the lease in order to avoid the expense of having to completely renovate the apartment—so they do.
What about vaping?
Things get more confusing depending on how a landlord defines vaping. In the case of the Weinandys, the couple in Massachusetts, it wasn’t smoking but a lack of clear policy about vaping that brought on their eviction notice.
“The Weinandys were served an eviction notice by the complex, alleging they violated their non-smoking policy and breached the ‘quiet enjoyment’ of their neighbors by vaping,” reported Western Mass News. Reporters Audrey Russo and Andrew Masse obtained the Weinandays’ tenant agreement from court documents and found it did not actually mention vaping.
Whether or not vaping qualifies as smoking depends on your state’s definition of “smoking.” In Massachusetts law, for instance, vaping has been considered the same as smoking since 2018.
According to a 2016 study prepared by the Tobacco Control Legal Consortium and the Public Health and Tobacco Policy Center, researchers found that several states—including Colorado, Hawaii, Minnesota, North Carolina, South Dakota, Utah, West Virginia and Wyoming, as well as the District of Columbia—had “all passed at least one provision formally declaring e-cigarettes to be ‘tobacco’ or ‘tobacco-derived’ products.”
Nicotine and cannabis often lumped
But “e-cigarettes” are not the same as cannabis vaporizers. Though there’s an obvious difference between tobacco and cannabis vaporizers, that generally isn’t reflected in the law. Most legislators and medical experts lump the two together, largely as a measure to prevent further spread of the VAPI/EVALI vaping sickness that affected more than 1,600 people this year, according to the CDC.
“We are seeing the THC as a marker for products that are risky,” Dr. Anne Schuchat, the CDC’s principal deputy director, told NPR. “But at this time, because of the continued presence of cases that only report exclusive nicotine-containing e-cigarette or vaping product use, we feel that it is very important for people to consider refraining from use of any kind of e-cigarette.”
In the end, private landlords are all over the place on vaping. According to the legal encyclopedia Nolo, “Although the trend is to prohibit smoking (and vaping) in multi-tenant properties, in some states no law or ordinance prohibits vaping (let alone smoking tobacco) in individual units in multi-family rentals, and even in common areas. Tenants who desire smoke- and vape-free environments must look for properties whose owners have imposed their own rules.”
From a landlord’s perspective
Owning a building and renting it out comes with risk, which is why leases are so lengthy and full of restrictions. Landlords are protecting themselves, in a legal sense.
“The landlord can be held liable for injuries, loss of property, emotional anguish and even the cost of the tenant relocating to another rental property if it can be shown that an action or inaction was negligent. A guilty verdict can mean fines, reparations and possibly jail time,” according to SFGate.
Along these lines, smoking cannabis onsite is an unnecessary liability to the landlord for several reasons. Secondhand smoke can annoy other tenants and create health issues for neighbors.
All renters have rights
Landlords have a responsibility to keep a residence habitable for all renters, according to most landlord-tenant laws. Smoke of any kind that wafts into a neighbor’s apartment can be cause for legal action against the landlord. This is especially true if cannabis smoke has caused health concerns and hospital bills for the neighbors.
Landlords have a legal responsibility to keep a residence habitable for all renters.
According to Nolo.com, “Landlords…prohibit smoking to avoid lawsuits—tenants have sued landlords who allow smoking on various legal grounds, such as: nuisance (for example, odors from smoking annoy other tenants) and breach of the duty to keep the rental habitable (for example, units subject to secondhand smoke being uninhabitable because of health concerns).”
Additionally, smoking anything indoors is a fire hazard. According to a report from National Fire Protection Association, “During 2012-2016, an estimated annual average of 18,100 (5%) reported home structure fires started by smoking materials killed an average of 590 (23%) people annually, injured 1,130 (10%) per year, and caused $476 million in direct property damage (7%) per year.” Plus, apartment fire from smoking is a common reason for a landlord to be found negligent and liable.
Public housing has its own rules, and they’re worse
Some private landlords may permit smoking on their properties. But if you live in publicly funded housing, the landlord is legally obligated to prohibit cannabis. If warnings aren’t heeded, a landlord may be forced to evict cannabis smokers. That’s because any federally-subsidized housing is subject to federal law—and cannabis remains a federally illegal drug.
The U.S. Department of Housing and Urban Development reinforced that policy in 2011 by issuing a memo after “receiving many inquiries regarding the use of medical marijuana.”
Federal law allows public housing authorities to evict tenants for use of a controlled substance.
“The Quality Housing and Work Responsibility Act (QHWRA) of 1997,” the memo read, “requires all Public Housing Agencies (PHAs) to establish occupancy standards and lease provisions that will allow the PHA to terminate assistance for use of a controlled substance.”
This means that the more than 10.4 million people living in publicly subsidized housing throughout the United States are prevented from possessing medical or adult-use cannabis in any form, despite the fact that an estimated 41% of federally subsidized households include people with disabilities.
It’s an issue of “discrepancy in state and federal law, one of many concerning marijuana use in states that have legalized recreational or medical use, [that] shows how a double standard over pot still exists, especially for low-income communities and people of color who have been disproportionately punished by the war on drugs,” according to Curbed.
Some lawmakers have taken notice of this issue. Earlier this year Congresswoman Eleanor Holmes Norton, who represents Washington, D.C., introduced a bill to permit medical cannabis in subsidized housing in legal states. According to the Washington Post, the housing authority in Washington, D.C., hasn’t evicted any tenant for cannabis use since the District legalized the adult use of cannabis in 2015.
Still, in many legal states and across the country, public housing tenants continue to be ousted due to cannabis use.
‘Disabled’ is a protected class, ‘MMJ patient’ is not
You might assume a cannabis patient with a medical card would have more rights concerning cannabis use at home—which is true, to some degree.
Assuming a disabled patient has obtained a medical marijuana card—which has qualifications that vary by state—and lives in a privately-funded rental, they may request a change in the building’s no smoking policy, also known as a ‘reasonable accommodation,’ under the Fair Housing Act (FHA). These issues also fall under the Americans with Disabilities Act (ADA), but the Fair Housing Act more directly addresses disability housing disputes.
If that accommodation can be made without causing undue hardships like financial or operational burden for the property management company, the law holds that it should be carried out.
That said, there’s a serious difference under the law between a qualified medical marijuana patient and a disabled person.
Not all conditions that qualify a patient for a medical cannabis card also qualify as a disability. For instance, New Jersey’s medical cannabis program counts anxiety as a qualifying condition, but only certain anxiety disorders that are defined as “extremely debilitating” count as a disability under the Fair Housing Act.
“Not all conditions rise to the level of a disability,” reports the law firm Fox Rothchild, LLC. “It is absolutely true that some forms of anxiety are disabling such that the person is considered disabled under the law. Just not that every case of anxiety (or another condition) rises to the level where a reasonable accommodation or reasonable modification request is appropriate.”
What ‘reasonable accommodation’ means
Additionally, though doctors cannot legally prescribe cannabis, these reasonable accommodations are made as a result of a doctor’s recommendation—and doctors will rarely recommend that a patient specifically smoke cannabis.
The American Lung Association’s official position on smoking cannabis is that it is harmful to lung health: “Smoke from marijuana combustion has been shown to contain many of the same toxins, irritants and carcinogens as tobacco smoke.” Studies suggest that the risk of lung-related negative health outcomes is far lower for cannabis smoke as compared to tobacco smoke. (For more on this, see Leafly’s article, Is smoking cannabis bad for you?)
Another factor to consider: The health risk of secondhand cannabis smoke for the neighbors is just the sort of aforementioned ‘undue hardship’ that may invalidate a ‘reasonable accommodation’ request.
There are some exceptions
Most requests for medical cannabis “reasonable accommodations” are denied, but that doesn’t mean they aren’t made, advocated for, and occasionally granted.
In fact, SMJ Consulting, part of the Advanced Integrative Medical Science Institute of Seattle, will occasionally advocate for medical cannabis patients in Washington state, using the most up-to-date medical research and policy analyses, in disputes with private and public property managers.
“We currently have a patient where we are advocating for their right to use the inhalation method in an assisted living home,” said Mary Brown, founder of SMJ Consulting. “This patient has a neurodegenerative condition that would be most beneficially targeted with the inhalation method.”
Courts are sorting out details
The results of that case are still pending, but in Washington state a disabled tenant may have a better chance of a favorable verdict. That’s because landlords in legal adult-use states tend to be more progressive, and the conflict between federal and state law offers a legal gray area.
“Things get murky for landlords in states allowing medical marijuana because of possible claims under state fair housing laws that medical marijuana use is a ‘reasonable accommodation’ for say, people undergoing cancer treatment,” reports All Property Management. “Because state medical marijuana laws directly conflict with federal law, the enforceability and legal liability of any medical marijuana policy is in question. You have options when it comes to developing a medical marijuana policy, but none should be considered fail safe.”
In other words: As a tenant, don’t count on being granted the right to smoke cannabis at a rental. But if you’re in a state that has legalized cannabis you may encounter more lenient landlords—especially if they don’t receive federal funding and they’re in a market with a relatively high vacancy rate.
Where this leaves tenants
Tenants have very little power to overturn a “no cannabis smoking” policy at their rental property. But that doesn’t mean you can’t consume cannabis at all. If you live in a private building, non-combustible cannabis consumption methods should be allowed. If they’re not, your landlord is overstepping.
“A private landlord who is forbidding all marijuana use in any form is going to have some problems. It raises the same issues as if a landlord is attempting to control the tenant’s lifestyle—you can’t do that,” said Loeffler. “The tenant can do whatever he or she pleases as long as it doesn’t damage the property or make life unhappy for the neighbors.”
As for Francine and Timothy Weinandy, the case brought against them by their privately-owned apartment complex was dismissed in late November by a Massachusetts housing court. But that didn’t stop the Weinandy’s from leaving the Sutton Apartments for greener pastures. As Francine Weinandy told Western Mass Live, she and her husband found a new apartment a week before the dismissal because they “no longer felt welcome” at the Sutton.