Marijuana laws are rapidly changing, with at least 20 states considering ballot measures this year to legalize pot in some way.
Twenty-three states and the District of Columbia have already legalized medical marijuana. Four of those states — Alaska, Colorado, Oregon, and Washington — along with D.C. have also legalized recreational pot use.
Although cannabis remains illegal under federal law, the U.S. Drug Enforcement Agency — which made marijuana a primary target in its “war on drugs” — is considering reclassifying it as a Schedule II drug, which could open the door to decriminalizing pot on a federal level.
As a result, many more landlords and property managers could face new considerations when it comes to how marijuana laws affect their lease agreements. There are a number of scenarios related to marijuana legalization you could find yourself in, but if you stay informed, you can take steps to address any changes in the legal landscape.
If Your State Legalizes Recreational or Medical Marijuana…
Landlords and property managers are not required to accommodate recreational put use under state laws, but they may choose to make some exceptions for tenants who use marijuana for medical purposes. Still, that doesn’t mean you have no control over how it’s used inside your building. And unless federal law is changed, you may still prohibit marijuana use in any form.
One of the first things you need to decide is whether you want to allow smoking of any kind in the building. Tobacco, for example, is a legal substance nationwide, but most property and business owners — restaurants, bars, apartment buildings — have the right to ban smoking cigarettes inside. The case for marijuana is no different.
You can easily add a few sentences to your lease agreement prohibiting smoking or using tobacco or cannabis on the property. However, there are other ways to use medical marijuana besides smoking it, such as using a vaporizer, eating THC-infused edibles, or using cannabis tonics and extracts. You could choose to specify which types of usage are allowed onsite, as long as you include this clause in the lease agreement.
Here are some marijuana addendum clauses that can be included in a lease to specify the approved cannabis use:
- The use of tobacco and cannabis in accordance with state law is allowed on the Premises. Prior written consent of the Landlord is required before medical cannabis may be grown on the Premises.
- This is a nonsmoking residence. No smoking, including medical marijuana, inside the home or on the Premise is permitted. However, consuming medical marijuana with a vaporizer or in cannabis edibles, tonics, or concentrates is permitted.
- No recreational or medical marijuana may be grown or consumed on the Premises by the Tenant(s) or guest(s) without the prior written consent of the Landlord.
If No Form of Marijuana Is Legal in Your State…
Then you don’t specifically need to address cannabis in your lease agreement because it automatically falls into the category of illegal activity.
But — and this is a big but — with legal attitudes toward marijuana changing as fast as they are, your opportunity for recourse may become more complicated if you don’t explicitly address its use. You should include an anti-drug policy in your lease agreement, and make sure to include a marijuana addendum specifically outlining its prohibited use.
Here’s an example:
“Usage of cannabis and any other federally prohibited drug is not allowed on the premises. Further, tenant and their guest(s) may not engage in any illegal drug-related activity, including but not limited to medical cannabis on or near the premises. Landlord may terminate this agreement if tenant and/or guests engage in such activities. If this provision is violated, tenants will be subject to charges, damages, and eviction. Tenant forfeits their security deposit if there is any evidence of cannabis use on the premises.”
Can You Evict a Tenant for Using Marijuana?
In states where marijuana is banned, issuing an eviction notice to a tenant who violates your anti-drug policy or anti-marijuana clause is fairly straightforward.
But even in states where recreational and medical marijuana have been legalized, you have the right to evict tenants who violate the terms of your lease, which would be an eviction for engaging in federally illegal activity.
If you ban smoking marijuana — but not other forms of consumption of the drug — and a tenant continually violates that term, you can evict. This is why it is so important for a landlord to clearly state the rules concerning marijuana use in their lease agreements.
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