The issue of banning marijuana use in rental properties has always been subject to contention, especially if the federal, state and local laws have not banned marijuana use. 

When a tenant signs a lease and establishes that the landlord has a no smoke policy for marijuana, the question therefore would be whether marijuana is legal or illegal in that specific area of jurisdiction?

Of course landlords have a right to their property, hence they can decide not to allow a tenant to occupy their property. However, it is worth noting that tenants have their rights. The debate therefore is about which law is supreme in regards to cannabis use in rental properties.

Is it the federal laws, state law or any other laws that apply to the housing industry? So can an apartment prohibit smoking marijuana in legalized state?

What The Law Says

Disputes between landlords and tenants are very common, especially when it comes to restricting marijuana use in apartments. The greatest challenge that many landlords face is dealing with a tenant who insists on their use of cannabis, regardless of the rules of the community. 

However, such a problem can be dealt with during the initial signing of the lease agreement. The main argument among legal experts is that no landlord deserves to have their rental property not attract prospective tenants or, in the worst case scenario, have their property damaged through pot smoking.

This is the reason why there have been cases in the past where tenants are evicted from houses for violating their lease agreement through marijuana smoking.

With legal experts having to deal with frequent cases whereby landlords want to have a legal expert draft a lease document to address cannabis use, the main issue therefore is - what are the tenant’s rights with regards to marijuana smoking in states where medical cannabis or adult use of marijuana is legal?

Everything Comes Down To Smoking

When a landlord decides to prohibit cannabis use in their rental property, everything comes down to the gap between state and federal laws. In some states, the law is very clear about the process of evicting a tenant for smoking marijuana. You also often find that the fair housing policy, especially in public housing, tends to give landlords authority over their rental property, thus requiring tenants to honor the terms of the lease agreement.

With regards to marijuana smoking, there are two categories of cannabis use. There is consumption through inhalation, while the other category is everything else, including edibles. Topicals and edibles are less likely to affect other tenants in a rental property after being consumed by the user. 

This means that such cannabis products are allowed, especially if done in private as it is the case with medical marijuana. With that said, it is a totally different story in public housing, where state and federal laws reign supreme, including smoking medical marijuana in public housing. 

Many disputes between tenants and landlords stem from smoking marijuana. Smoking, in this instance, refers to smoked products related to cannabis use.

Regardless of whether you are a legal adult or smoking medical marijuana with a proper medical card for it, as long as the lease prohibits smoking marijuana, the landlord is at liberty to hold you accountable for violating the lease.

Cannabis Use Poses Potential Damage To Property

The smoking policy of different rental properties vary, but most landlords are against smoking marijuana, or draft marijuana laws in their leases, because of the potential damage to property. Smoking by itself is already a threat to many real estate properties.

It also increases health risk not just to cannabis users, but the rest of the tenants. For starters, marijuana use leaves a skunky smell that is trapped inside the room once it clings to the drapes and rugs. In addition, any form of smoke tends to stick to the ceiling and walls, which implies that landlords have to keep repainting the rooms once the marijuana smoking tenant moves out.

Tenants who smoke marijuana also have the tendency of dropping ash on the floor, which implies that the landlord will also incur additional repair costs once such a tenant moves out. This means that one of the legal rights of the landlord is to draft their lease agreements so that they are not the ones responsible for these damages. 

Legally, the law provides that tenants too have rights, but such rights should not be applied at the expense of an apartment or house owner. It is only when the tenant establishes lease termination based on reasons that are not in the lease can the landlord be found in violation of the tenant’s rights and fair housing policy.

Why Cannabis & Nicotine Are Lumped Up Together

You often find that many landlords have a policy against any form of smoking, despite marijuana and a product such as e-cigarettes being different products altogether. However, lumping nicotine and cannabis together is not reflected in state and federal laws. 

According to legislators, legal experts and medical experts, having the two in the same category is meant to stop the spread of certain illnesses such as the EVALI vaping sickness.

It is recommended that, especially in overcrowded areas like residential apartments or townhomes for rent, encouraging the use of any cannabis vaporizers could also encourage the use of the same by marijuana smokers.

As a private landlord, you reserve the right to prohibit any form of smoking and vaping. In some states, there is no law that prohibits smoking or vaping, even in open spaces. Under such circumstances, tenants are at liberty to seek apartments and houses whose owners have their own rules regarding smoking marijuana.

Landlords Have Rights To Their Rental Property

Landlords are aware that owning rental property comes with its own risk, which is why many of them use legal experts to draft leases that have restrictions in order to cushion themselves from being sued. 

There are many things that landlords can be held accountable for. For example, a landlord can be held accountable for a tenant’s injuries, loss or damage to property, the cost of a tenant moving and emotional anguish. However, the burden of liability is only applied if there is sufficient evidence to show action, inaction or negligence.

As a landlord, a guilty verdict can have great consequences such as heavy fines or an extensive jail term. To avoid such occurrences, the lease agreement provides that none of the parties involved is in breach of the lease.

From a landlord’s perspective, marijuana smoking is a major liability, considering that not every tenant can stand secondhand smoking, especially if it is cannabis. As a landlord, why then would you choose to retain active marijuana tenants and risk having your rental property not being fully occupied? Such a situation is an unnecessary liability that many landlords are not willing to take.

Understand That Tenants Too Have Rights

In the real estate world, it is expected that landlords ensure that the place is habitable for their tenants. This is in accordance with landlord-tenant laws that make this a requirement. This means that having cannabis users in your property is subject to legal action, especially if such smoking has any known health concerns.

In the past, tenants have successfully sued their landlords because of marijuana smoking in apartments; the basis being that the landlord owes a tenant the obligation of keeping the place habitable. If a different tenant is singled out as the cause of being a drug nuisance, then the landlord is also at fault, assuming that smoking marijuana causes a breach of other tenants’ peace. 

There is also the issue of indoor smoking having the potential of starting fires, which could cause unimaginable damage to property and risk the lives of other tenants. For a landlord, you are supposed to cite such eventualities in the lease agreement as the basis why you do not allow smoking marijuana in your apartment, even if it is in a state where cannabis use is legal.

It is not entirely the landlord’s fault when there are incidences that put the lives of other tenants at risk. However, it is the landlord who might be found to have been negligent and liable in cases of apartment fires, which have been on the rise recently.

The Rules Of Public Housing Prohibit Marijuana Smoking

Whereas private landlords are allowed to make their own policies regarding smoking marijuana in areas where the state and local governments have legalized marijuana use, the rules of public housing are very different.

Landlords are legally prohibited from allowing cannabis use in public-funded houses, and in case of violations to such laws, eviction of the marijuana smoking tenants is allowed. 

The reason why public housing rules are different from those that apply to private landlords is because publicly-funded housing is subject to federal laws, and federal law classifies marijuana as an illegal drug.

The greatest challenge for landlords therefore is to figure out how to apply marijuana laws or restrict marijuana use in their properties, especially since it has been a matter of controversy in states that have legalized smoking medical marijuana.

The discrepancy that exists between state and federal laws has led to a lot of confusion regarding how the smoking policy is applied in landlord-tenant agreements.

There Are Exceptions To How The Law Is Applied

In most cases, smoking medical marijuana means that the user has some degree of legality regarding how they use cannabis at home - which is true to some extent. 

In some states, having a medical card for marijuana use means that the tenant can request the landlord to change their smoking policy, but such a provision only exists for privately-funded rental property.

Such a request is made through the safe accommodation policy of the lease, but should only be carried out if the request can be executed without affecting other tenants and subjecting them to undue hardships or any financial distress to the property owner.

This, in simple terms, means that not every tenant qualifies for consideration by the landlord, especially for private rental properties, and the discretion to admit a tenant lies with the owner or the property management company.

Another issue that is subject to debate is that doctors do not prescribe smoking marijuana. Very rarely will you find a doctor asking a patient to specifically smoke marijuana, but what they do is recommend such use on medical grounds.

Why Landlord-Tenant Disputes Are Complicated In States That Allow Legal-Adult Use Of Marijuana

There are certain states that allow the legal use of marijuana where the tenant stands better chances of securing a favorable verdict. As a property owner, what is important to understand is that the discrepancy between state and federal law has a gray area, which can be taken advantage of by a professional legal expert. 

Things get complicated for landlords, especially regarding the use of medical marijuana, which in legal states is seen as being under fair housing laws. 

Due to the conflict between state law and federal laws regarding the use of medical marijuana, it becomes complicated to enforce legal liability on any issue or dispute concerning the use of medical marijuana.

Of course as a landlord or property owner, you are allowed to have an enforcement policy regarding smoking marijuana, but always ensure that the policy cannot be contested in states where smoking marijuana is legal.

This should not be interpreted to mean that the tenant has the absolute right of smoking marijuana in states where the product is legal. However, states that have legalized marijuana use are more likely to have lenient landlords.

Can An Apartment Prohibit Smoking Marijuana In Legalized State?

Many landlords often wonder - can an apartment prohibit smoking marijuana in a legalized state? Tenants do not hold absolute authority in overturning a ‘no cannabis smoking’ policy by a landlord. 

If a tenant lives in a privately-funded apartment or rental property and happens to consume non-combustible marijuana, then you as the landlord would be overstepping, in case you disallow any form of marijuana use.

Overstepping comes into question if the landlord is seen as trying to control the tenant’s lifestyle. However, prohibiting marijuana use should be applied in the event that such consumption has an effect on other tenants or can potentially cause damage to the property.