Can you forbid medical marijuana growing?

[TonyR]

Let's say you've got a tenant who's been renting for two years. The tenant recently got a medical marijuana card and would like to grow in the apartment. I (the owner) would rather he not. There is nothing in the original lease which prohibits this activity.

Can I forbid this? The tenant says that it's no different than growing any other plant or vegetable. He can legally grow 6 plants.

I'm in a rent-controlled city so I can't simply give him a 60 day notice to terminate. I need cause, and I've been told by someone in my housing association that this is not cause, but I just wanted to run it by everyone here.

Also, if I can't terminate, could I require a larger deposit at this stage of the game?


Thanks very much.

[Dan Auito]

I would ask the local authorities to rule on it!

[TonyR]

Thanks for the reply, Dan. I'll contact the rent board on Monday, just wondered if anyone has dealt with this before. I see ads that state "No MMJ growing" so it seems that you can deny applicants for this, but maybe once they're in you can't prohibit this activity.

[Rental Landlord]

If you don't mind my asking, why do you want to prohibit the tenant from growing MMJ? What's the harm?

As far as eviction goes, you probably can't evict him, since he has neither broken your lease agreement nor broken the law.

That said, there's no reason why you have to renew his lease. If you really want him out, you could always just tell him at the end of the lease term that you're not renewing it, or you could tell him that if he wants to stay, you're going to require him to sign a new lease agreement, that prohibits the growth of MMJ on the premises. That way, if he continues to grow it, you have legal grounds for an eviction based on breach of lease.

Still, if he's a good tenant otherwise, I wouldn't necessarily make a big deal over this issue, as long as there are no other issues (angry neighbors, etc). People on MMJ tend to be far more relaxed than rowdy twenty-somethings throwing toga parties and rolling kegs in; just a thought.

Best of luck with your mind-expanding tenant ;-)

__________________
Brian
Lease Agreement (http://www.ezlandlordforms.com/)

[Jim FL]

Check with the local laws etc, and your lease, perhaps the section about quiet enjoyment.
In other words, if the growing and use of the MMJ were to drift into other units in the building, and intoxicate other residents, and they complained.............would that be grounds?
Don't have the answer, but perhaps the right questions will help you arrive at the desired outcome.
Good luck, and please do let us know what happens, and/or what you find out.
Where are you anyway? it helps if posters and members here place their location in their name/profile here, so those who know particulars from that area can chime in and help.
Just sayin..............
Take care and good luck,
Jim FL

[TonyR]

If you don't mind my asking, why do you want to prohibit the tenant from growing MMJ? What's the harm?

I have several friends who grow and there's a lot of potential harm:

1. Hydroponic growing involved pumps, reservoirs, tubing, sprayers. No matter how careful you are, water can and will get splashed around. Plumbing can also be affected as you're dumping water (along with bits of material) which can cause clogs. The additional water use is not a big deal but still it's on my dime.

2. Lots of circuit loading electrical involved- the lights draw lots of power, plus you've got fans, filters, pumps, and sometimes A/C, CO2 setups, reverse osmosis filtration systems, etc.

3. Smell. During the flowering stage, the plants reek. Unless you're on top of things, odor does escape and can permeate a grow space and beyond.

4. Crime. Word gets around when someone's growing. The rule is don't tell anyone that you're growing, but it's hard to avoid. For example, I know of 4 other grows in my immediate neighborhood. Last year the biggest one was broken into and someone was shot during the robbery.

As far as eviction goes, you probably can't evict him, since he has neither broken your lease agreement nor broken the law.

It's breaking federal law, and federal law supercedes state law. Having said that, I'm in a rent-controlled city, which requires "just cause" to terminate. Whether or not this is "just cause" is the question. Interestingly, if it's NOT considered just cause, then the city is forcing landlords to allow illegal activity.

Note that I have no personal problem with MMJ use. In CA, everybody and his grandmother has a card. But there are risks that i'm not willing to bear. In addition to the abovementioned, what about insurance coverage? Let's say there's a fire. Would a claim be paid if it was determined that an illegal (by federal standards) operation was going on and that I as the owner authorized it? I wonder.

[TonyR]

Check with the local laws etc, and your lease, perhaps the section about quiet enjoyment.
In other words, if the growing and use of the MMJ were to drift into other units in the building, and intoxicate other residents, and they complained.............would that be grounds?
Don't have the answer, but perhaps the right questions will help you arrive at the desired outcome.
Good luck, and please do let us know what happens, and/or what you find out.
Where are you anyway? it helps if posters and members here place their location in their name/profile here, so those who know particulars from that area can chime in and help.
Just sayin..............
Take care and good luck,
Jim FL


Hi Jim,

I'm in CA, so growing is legal if you have a card. Quiet enjoyment could be relevant, but if it's done properly you can grow quietly and without odor. I'm more concerned with the issues I raised in the previous reply.

I've got calls into the rent board and city attorney's office. We'll see what happens.

Thanks for the feedback.

[mike_mn]

You do have a real issue here. Since Federal law states that Marijuana for any use is illegal, however individual states have enacted laws legalizing its medical use. It is a sticky wicket for certain.

I would think that since they are doing something against federal law, you can prohibit it based on your std lease verbiage since federal law trumps state law. Just because state officials won't or don't enforce the fed law because of their enacted laws that disagree with Fed law, doesn't mean you can't discriminate based on the fed law.

I would go to court with that argument, since the supreme court has held up the marijuana as an illegal drug ruling as recently as 2005.

[BSH]

Not sure about this, but federal and state laws permit people to do numerous things, but I don't think it necessarily means you have to allow it in your house. For example, you're allowed by state and federal law to have a cat, but I don't allow it in my rental properties. I think that, as long as it is not illegal for you to forbid it in your rental property, you should be OK. Personally, from what I'm learning, I would forbid it if the law allows me to do so. I just don't think it's worth the risk, frankly. Folks with an rx for medical marijuana do not have to grow it themselves--they can buy it, can't they?

FYI, I'm certainly no lawyer. In fact, I'm licensed only to drive. So don't take my word for it--I'm learning about this just like everyone else. I'd like more information on this myself, but not sure where to get it other than here.

[TonyR]

You do have a real issue here. Since Federal law states that Marijuana for any use is illegal, however individual states have enacted laws legalizing its medical use. It is a sticky wicket for certain.

I would think that since they are doing something against federal law, you can prohibit it based on your std lease verbiage since federal law trumps state law. Just because state officials won't or don't enforce the fed law because of their enacted laws that disagree with Fed law, doesn't mean you can't discriminate based on the fed law.

I would go to court with that argument, since the supreme court has held up the marijuana as an illegal drug ruling as recently as 2005.


Thanks for the reply, Mike. I can't believe anyone could be forced to break federal law, but you're right about the sticky wicket. The prospect of having to deal with a tenant's rights organization over this is what I'm trying to avoid- hopefully I'll get some answers soon.

[TonyR]

Not sure about this, but federal and state laws permit people to do numerous things, but I don't think it necessarily means you have to allow it in your house. For example, you're allowed by state and federal law to have a cat, but I don't allow it in my rental properties. I think that, as long as it is not illegal for you to forbid it in your rental property, you should be OK. Personally, from what I'm learning, I would forbid it if the law allows me to do so. I just don't think it's worth the risk, frankly. Folks with an rx for medical marijuana do not have to grow it themselves--they can buy it, can't they?

FYI, I'm certainly no lawyer. In fact, I'm licensed only to drive. So don't take my word for it--I'm learning about this just like everyone else. I'd like more information on this myself, but not sure where to get it other than here.

I appreciate the feedback BSH. I've seen ads that state "No MMJ growing" and I'm assuming it can be prohibited, like pets, in the application/prior to tenancy. The question is what happens when the tenant is already in place. I can see the tenant's argument, after all it's legal in CA, but I'd rather not have it.

You're right that MMJ can be easily purchased, but the prices at the dispensaries are pretty high (no pun intended). Many people are growing their own these days in my area.

I've got calls into the rent board, the city attorney's office, and the housing association. I'm not holding my breath for an answer. When any legal question comes up, these sources never want to be pinned down on an answer due to liability issues I suppose. "Consult an attorney" is the usual refrain. Anyway, if I hear back from anyone I'll post it.

[MattGerchow]

Very interesting post.

Make sure you are very stern with them that you will be by every few weeks to see how this is affecting the property. If he is like anyone else I have ughem, heard about growing then he is certainly planning on growing more than 6 plants. Most guys are growing to sell at some point.

If they are using your house and the feds decide to make you an example, with prior knowledge you just might forfeit your property.

[BSH]

... but the prices at the dispensaries are pretty high (no pun intended).

Bring on the puns!!!!

My approach is the same whether it's for a prospective tenant or an existing tenant. However, I will consider exceptions for really good tenants who've been in place 2+ years. For example, I don't usually allow pets; but a long-time tenant wanted to get a small dog for her daughter, and I allowed it because of her good standing with me. I simply drew up an addendum to her lease, allowing this dog and only this dog, as long as there is no damage, etc.

I guess you could allow this tenant to grow his MMJ on a trial basis, with the understanding that, at any time, you can cancel the agreement to allow him to grow MMJ. Or, turn his lease to a month-to-month, giving you even greater control of the situation if it becomes a problem.

I agree with the previous poster here that you should inform the tenant to expect frequent inspections (I inspect my propertys quarterly anyway) to ensure he is not doing anything illegal.

Please do let us know what more you learn about this.

[TonyR]

Very interesting post.

Make sure you are very stern with them that you will be by every few weeks to see how this is affecting the property. If he is like anyone else I have ughem, heard about growing then he is certainly planning on growing more than 6 plants. Most guys are growing to sell at some point.

If they are using your house and the feds decide to make you an example, with prior knowledge you just might forfeit your property.


Thanks for the reply and good advice, Matt. I'm getting conflicting information on how many plants are legal here in Oakland, CA. Nobody seems to know for sure.

I'm less concerned about a federal raid than by possible criminal activity (other grow houses in the area have been broken into) and potential insurance issues (if there was a fire, even one unrelated to the grow, could the claim be denied?).

[TonyR]

Bring on the puns!!!!

I agree with the previous poster here that you should inform the tenant to expect frequent inspections (I inspect my propertys quarterly anyway) to ensure he is not doing anything illegal.

Please do let us know what more you learn about this.

I appreciate the reply BSH. Haven't heard back from any of the agencies I contacted, which is not surprising. Went to a housing association seminar that touted "attorneys available to answer questions" but they would not get into anything specific, they spoke only in extreme generalities. You might think that a group of attorneys could figure out a way to pass out a disclaimer absolving themselves of liability for their advice at a seminar, but no.

More research needed. The tenant has been very cool about waiting, but really wants to grow, and I really don't want to lose him. I think at this point, the biggest question is about insurance. For obvious reasons I don't want to call up my carrier and ask directly.

Thanks to all.

[Debbie]

I appreciate the reply BSH. Haven't heard back from any of the agencies I contacted, which is not surprising. Went to a housing association seminar that touted "attorneys available to answer questions" but they would not get into anything specific, they spoke only in extreme generalities. You might think that a group of attorneys could figure out a way to pass out a disclaimer absolving themselves of liability for their advice at a seminar, but no.

More research needed. The tenant has been very cool about waiting, but really wants to grow, and I really don't want to lose him. I think at this point, the biggest question is about insurance. For obvious reasons I don't want to call up my carrier and ask directly.

Thanks to all.

I acknowledge your tenant has a medical marijuana card but I beg to question if your tenant truly has a legitimate reason from a legitimate doctor but that's a subject for another time.

Since your tenant is so patiently waiting, why not let him/her continue to wait? After all, your tenant can easily grow marijuana at a friend's or family's property.

Common sense tells me that it is so easy to buy from the "Pot Store" in the state of California, you are not obligated to become your tenant's co-dependency (if you get my drift). Why risk yourself and your investments especially where it is still against the federal law to grow and/or purchase marijuana.....:oops: After all, the federal laws supercedes state laws.

Furthermore, no legal attorneys (state or federal) can truly answer your question because the laws are too murky. That's why attorneys are still "practicing" laws --- otherwise we wouldn't have so many attorneys giving us conflicting answers/informations.

Bottom line: Tell your tenant that you can not allow it until you receive concrete law that you are obligated to provide your property as a pot farm.

If your tenant has any respect for you as a landlord, you will not lose your tenant over marijuana.

[TonyR]

Since your tenant is so patiently waiting, why not let him/her continue to wait? After all, your tenant can easily grow marijuana at a friend's or family's property.

Thanks for the feedback, Debbie. My feeling is that if the tenant has a legal right to grow, then I'd like to have a solid basis for deciding whether to allow it or not. If I were in his shoes, I'd want a reasonable explanation why I couldn't do something that's legal.


Common sense tells me that it is so easy to buy from the "Pot Store" in the state of California, you are not obligated to become your tenant's co-dependency (if you get my drift). Why risk yourself and your investments especially where it is still against the federal law to grow and/or purchase marijuana.....:oops: After all, the federal laws supercedes state laws.


You're right, it's easy to buy from a dispensary. It's expensive, though. I'm not willing to risk my investment but I'd really like to know where I stand legally.


Furthermore, no legal attorneys (state or federal) can truly answer your question because the laws are too murky. That's why attorneys are still "practicing" laws --- otherwise we wouldn't have so many attorneys giving us conflicting answers/informations.

I respectfully disagree. The city attorney's office, funded by taxpayer money, certainly must have grounds for believing that the ordinance complies with state law. The local rent board, which is funded by owners, could surely have their staff research the issue. It's annoying that they will not even respond with an automated reply to repeated calls and emails. We'll see if they reply to a letter I sent.

Moreover, I think it's ridiculous that I'm paying $475 a year to our landlord association and attending their seminars where the guest attorneys refuse to speak in anything but generalities. Either there is existing case law on this particular subject or there's not. If there is, then explain the case and the ruling. If not, let us know your educated opinion- we'd be happy to sign your disclaimer form and absolve you of liability.

It's just interesting that I seem to be the first person in CA history to raise this issue. Who woulda thunk it.


Bottom line: Tell your tenant that you can not allow it until you receive concrete law that you are obligated to provide your property as a pot farm.

Good advice. This is what I'm doing.


If your tenant has any respect for you as a landlord, you will not lose your tenant over marijuana.

Well, it's a brave new world out here. There are lots of vacancies and some people do move where they can grow. As mentioned, I'd rather not lose this tenant. I also believe that he's someone who would grow responsibly.

Onward and upward.

[Outsider]

Hypothetical for ya'll:
Tenants rent wharehouse,
being poorly advised they don't inform owner of their intent to cultivate MMJ (legally*),
but in reviewing the lease it seems there is nothing specifically banning it.
As a LL or owner, what do you do if you discover this?
What sections of the lease would you use to try to evict these tenants if you were to?

Not that it's of any consequence now, but if they could go back they would seek out one of the many LL willing to rent to MMJ people.

[haynesm]

What some others are saying

This page enlightened me to the care giver aspect of Medical Marijuana. Depending on the city ordinances which vary GREATLY. Up to 3 pounds dried is allowed in some CA cities & 72 plants. That is a lot of Mary Jane IMO. To much. To me it's legalizing drug dealing. (shaking head)

http://www.safeaccessnow.net/countyguidelines.htm#otherstates

Check out the link to the expert MJ witness site for a free download pdf on Medical MJ.

[TonyR]

The boilerplate for most leases prohibits unauthorized alterations to the premises as well as illegal activities. Most large grow operations entail building modifications. Also, it would be interesting to see if evicting someone for violating federal law holds up in states where it's legal to grow.

Maybe there's an insurance angle that could be played- tell the tenant that this is a violation of your policy and if the tenant wishes to pay for full coverage then they're free to grow.

Maybe there are fire dept. regulations such as sprinkler system requirements. Again, I'm referring to a large warehouse grow. Arrange an inspection.

I've seen large grows that violate electrical codes. Arrange an inspection, require tenant to pay for necessary modifications.

Report suspicious activity at this location to the police. Nothing like an early morning raid to jolt the senses.

If all else fails, don't renew the lease. I think it'd be much easier to persuade someone with a large grow op to move than someone who's got a small personal grow going in an apartment.

[TonyR]

What some others are saying

This page enlightened me to the care giver aspect of Medical Marijuana. Depending on the city ordinances which vary GREATLY. Up to 3 pounds dried is allowed in some CA cities & 72 plants. That is a lot of Mary Jane IMO. To much. To me it's legalizing drug dealing. (shaking head)

http://www.safeaccessnow.net/countyguidelines.htm#otherstates

Check out the link to the expert MJ witness site for a free download pdf on Medical MJ.


Thanks very much for the link. Note that I've read on other forums that the information here may not be completely accurate/up to date.

[Jim FL]

Tony,
Not sure why I didn't post this before..........but.
If you don't want to allow it, just don't.
While legal locally, federally it is still against the law.
Not that the feds will raid your tenant, but, technically, they are violating the law, federal law.
So, the part of your lease that states they cannot conduct any illegal activity on premises, and doing so is cause for eviction, would be where to hang your hat.
And, explaining to the tenant would be easy.
Insurance claims might be denied, and because you have prior knowledge of their activities, you'd be in a precarious position legally.....because yes, growing weed, medical or not, is illegal according to federal law.
Something the insurance company might hang its hat on to deny claims from damage, accidents, etc.

I'm no lawyer, but this would be my approach, no growing in my house thanks, and if they did anyway, evict immediately.

My thoughts, HTH,
Jim FL

[TonyR]

Tony,
Not sure why I didn't post this before..........but.
If you don't want to allow it, just don't.
While legal locally, federally it is still against the law.
Not that the feds will raid your tenant, but, technically, they are violating the law, federal law.


Jim, thanks for the reply. While I agree with you in general, I still would like to know EXACTLY where i stand legally. I live in the SF Bay Area, which is the land of tenant's rights organizations. Let's say that the tenant is a low-income cancer patient who'd like to grow because they have trouble paying dispensary prices- do you really want to risk the potential backlash?



So, the part of your lease that states they cannot conduct any illegal activity on premises, and doing so is cause for eviction, would be where to hang your hat.

This gets tricky though. Gay marriage is legal in certain states, but not recognized federally. If you worked for an insurance company in, say, Connecticut, could you deny spousal benefits based on gay marriage not being federally sanctioned? I don't know. Maybe it's not quite the same thing, but there are similarities and I really just want to know what the law is on this issue.

I think it's comically absurd that no one seems to know. It reminds me of the IRS: You can call up and speak to a tax specialist, get their name and ID number, and if it turns out that the information they gave you is wrong, you're still liable for the mistake. That's pretty damn impressive in my book.


And, explaining to the tenant would be easy.
Insurance claims might be denied, and because you have prior knowledge of their activities, you'd be in a precarious position legally.....because yes, growing weed, medical or not, is illegal according to federal law.
Something the insurance company might hang its hat on to deny claims from damage, accidents, etc.

I'm no lawyer, but this would be my approach, no growing in my house thanks, and if they did anyway, evict immediately.

Wrongful eviction can lead to many problems here in sunny CA, esp. in cities with rent control. I don't mind taking a hard line with tenants, I just like to know where I stand before drawing that line. The insurance angle is an interesting one but again, wouldn't it be nice to know how insurance companies actually handle this? Obviously I can't ring them up and say, "Hypothetically speaking, let's say someone's growing pot in my building and the place burns down. Will the claim be paid?"

Knowledge is power and I hate acting from a position of weakness.

I appreciate the feedback.