Medical Marijuana Presents Management Challenges

As of April 2014, 21 states and the District of Columbia have legalized medical marijuana, and two states – Washington and Colorado – have legalized recreational use of marijuana. This creates a number of issues for owners and managers of multifamily properties in these states (the states are: Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington).  The question of whether the use of medical marijuana must be allowed as a reasonable accommodation for a disabled person depends on whether the question arises as a state or federal fair housing issue. HUD has indicated that since marijuana in any form is a violation of federal drug law, owners are not required to permit its use as a reasonable accommodation. However, States also protect the disabled from discrimination, and a State court could well take the position that refusing to permit someone to smoke medically prescribed marijuana could violate State fair housing law. So, before refusing such a reasonable accommodation request in these states, consult with your attorney.

Like tobacco use, a lease can regulate marijuana use. For example, a property can be smoke-free and drug-free, meaning no smoking of any kind, including marijuana. Or, a property could prohibit smoking of any kind, but permit the use of medical marijuana in non-smoking forms. While smoking is the most expedient method of consuming medical marijuana, it can also damage the lungs and cause respiratory problems, and does generate second-hand smoke. Alternatives to smoking the medical marijuana include (1) medical marijuana vaporizers; (2) medical marijuana edibles; (3) medical marijuana tinctures and tonics; (4) medical marijuana topicals; (5) medical marijuana tea and sodas; and (6) medical marijuana hash and wax.

If you operate in one of the areas that permit medical marijuana, you should be proactive about establishing a policy. Whatever you decide, the following steps should be taken:

1. Add the necessary language to your rental criteria and distribute the criteria to prospective renters;
2. Advertise your policy clearly;
3. Post plain-English information about your policy in the rental office;
4. Add appropriate language to your lease (after approval by your attorney);
5. Enforce the terms of the lease; and
6. Be consistent.