Court Talk

In the Weeds

written by Steven C. Williams

Confused by the myriad of State and Federal marijuana laws? You’re not the only one. Below, attorney Steven C. Williams clears up how tenants can and can’t use marijuana in residential buildings.

Is a tenant legally entitled to grow and smoke marijuana inside a residential rental unit? Twenty-five years ago, the answer to this question would have been simple—NO. But now the answer to this question is more complicated. There are a myriad of laws and factors to consider when determining rights and obligations involving marijuana use and housing.

Federal Law
Under Federal laws, marijuana use, growth, and sale are illegal. In fact, marijuana is classified as a Schedule 1 drug, along with dangerous and addictive drugs like heroin and LSD. Schedule 1 drugs are deemed to have no currently accepted medical use in the United States, a lack of accepted safety for use under medical supervision, and a high potential for abuse. The laws even empower the Federal Government to seize real property of owners who allow marijuana distribution or cultivation within a property. 

Notwithstanding these strict Federal marijuana prohibitions, the Federal Government has not enforced these laws over the past decade. In 2009, the Department of Justice issued a memo directing U.S. attorneys not to use Federal resources to enforce Federal marijuana laws in states where medical marijuana use is legal. This directive has been affirmed several times since 2009. The Federal Government is not currently taking action against real property owners where marijuana use within a property is consistent with California medical marijuana laws.

Compassionate Use Act
In 1996, California passed the Compassionate Use Act. Under this Act, marijuana use and growth became legal for persons with disabilities for medicinal purposes and as prescribed by a physician. A qualifying disabled person may use or possess up to 28.5 grams of marijuana and cultivate up to 12 marijuana plants within a residential unit. And the laws are very broad as to what constitutes a disability. More on that later.

Cities like San Francisco have passed their own laws governing and expanding medical marijuana use. For example, a disabled person residing in San Francisco may cultivate up to 24 marijuana plants within a rental unit.

Adult Use of Marijuana Act
In 2016, California voters passed Proposition 64, officially known as the Adult Use of Marijuana Act, legalizing marijuana for recreational use. This law decriminalizes the personal use and possession of marijuana by individuals 21 years of age or older.

Individuals may now possess, process, transport, purchase, obtain, and give away up to 28.5 grams of marijuana. Furthermore, individuals may possess, plant, cultivate, harvest, dry, and process up to six marijuana plants within a residential unit. The marijuana use need not be for medical purposes; it can be strictly recreational. Notwithstanding recreational legalization, marijuana is still not permitted where tobacco use is prohibited such as near or at a school, or while driving.

Conflicting Laws
Even though the Federal Government is not actively enforcing its marijuana laws, marijuana use remains illegal under Federal laws. While a tenant’s use or growth of marijuana within a residential unit may be lawful under California laws, it remains illegal under Federal laws. So how is this legal conflict between State and Federal laws rectified?

There are several court cases in several different jurisdictions discussing and deciding this conflict. In those cases, the courts noted the Federal Government’s reluctance to enforce its own Federal marijuana laws and held that so long as the marijuana use is consistent with State medical marijuana laws, it is lawful notwithstanding the contradicting Federal laws.    

Adverse Implications for Landlords
Some landlords have serious concerns about a tenant using or growing marijuana in a residential rental unit. These concerns may include the following: 

  • Increased Fire Danger—tenants may add heating devices or alter or manipulate the electrical and heating systems in a unit to create ideal lighting and heat to grow marijuana. Such work may be done without permits and not up to current code and safety standards and create a serious fire hazard.
  • Excess Moisture and Mold—watering systems and irrigation may create elevated levels of moisture and mold in the unit, potentially endangering occupants and damaging real property.
  • Odor and Smoke—the smell and smoke may waft into common areas and neighboring units and disturb other tenants and even make them sick, particularly minor children.
  • Uncertainty of Federal Laws—while the Federal Government is not currently enforcing its Federal marijuana prohibition laws, this may change in the future.


Fair Housing Laws
Similar to a prohibition against smoking tobacco, a landlord can still lawfully prohibit marijuana use and growth in a residential rental unit. Such prohibition must be in a written rental agreement and is enforceable against recreational marijuana use. However, it may not be enforceable against medical use.  

Notwithstanding a lease prohibition, fair housing laws impose certain obligations on landlords. Federal, State, and Local fair housing laws protect persons with disabilities. It is unlawful for a landlord to refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford tenants with disabilities an equal opportunity to use and enjoy a dwelling unit. What does this really mean? It means that landlords must make exceptions to their standard rental practices and policies to accommodate tenants with disabilities so long as the accommodation does not create an undue financial and administrative burden.

In other words, a landlord must be flexible with rules and policies and even permit certain things that might otherwise be prohibited when those things are reasonably needed to accommodate a disability such as using and growing medical marijuana.

The legal definition of disability is very broad and encompasses countless impairments, many of which may not be visibly apparent. In California, a tenant is disabled if the tenant has any physical or mental impairment that limits one or more major life activities. Major life activities can be just about anything, including caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. So, if a tenant has an impairment that limits these or any other major life activity in any way, then the tenant has a qualifying disability.

Medical Marijuana
California permits marijuana use and growth for medical purposes. Many doctors are more than willing to prescribe marijuana for a multitude of impairments. And there are many potential medicinal benefits of marijuana.

Tetrahydrocannabinol (THC) for example, is a cannabinoid from the marijuana plant that may alleviate pain, increase appetite, reduce nausea and vomiting, and aid sleeping, among other things. Another cannabinoid, Cannabidiol (CBD) may reduce pain and inflammation, control epileptic seizures, relieve anxiety, and treat mental illness. THC produces psychological effects, meaning it gets you high, while CBD does not. This list of potential medical benefits is not exhaustive and continues to grow as more testing is conducted. 

Reasonable Accommodation
A tenant’s request to smoke or grow marijuana may be reasonable under State and Local fair housing laws. Accordingly, a landlord may have to allow a disabled tenant to use or grow marijuana in a residential rental unit to accommodate that tenant’s disability, even when prohibited by the lease. Here’s a hypothetical to illustrate such a scenario:

HYPOTHETICAL: A tenant with Post Traumatic Stress Disorder requests to smoke or grow marijuana in a rental unit because marijuana alleviates the symptoms of the disorder. The rental agreement expressly prohibits smoking and growing marijuana. Is this a reasonable accommodation? Most likely, YES. Remember that State and Local fair housing laws permit a person to smoke and grow up to 24 marijuana plants within a residence in San Francisco. And fair housing laws would likely prevent a landlord from prohibiting a disabled tenant from doing so. 

It is important to note that a landlord’s failure to provide or even consider a reasonable accommodation request may be discriminatory and violate fair housing laws and subject the landlord to potential liability.

While fair housing laws are very broad and encompassing, they are not without limits. For instance, they do require a landlord to bear undue financial and administrative burdens. They also do not enable a tenant to engage in illegal activity or to create a nuisance that unreasonably interferes with neighbors. Any medical marijuana use by a tenant must be done in compliance with applicable medical marijuana laws and so as not to unreasonably disturb others.

Forty-six states have legalized marijuana use in some capacity. California has legalized it both medically and recreationally. Landlords must be aware of these marijuana laws as well as fair housing laws protecting disabled tenants. Failure to properly handle a disabled tenant accommodation request can result in significant liability.

The information contained in this article is general in nature. Consult the advice of an attorney for any specific problem. Steven C. Williams is with Fried & Williams LLP and can be reached at 510-625-0100.