Multifamily property managers are often caught in a pot crossfire between state and federal laws when it comes to marijuana use in apartments, especially in states where marijuana use is legal.

Of course under federal law, marijuana possession is illegal. Pursuant to the Controlled Substances Act, it is classified as a Schedule I substance, which are defined as drugs with no currently accepted medical use and a high potential for abuse. According to the Office of National Drug Control Policy, marijuana is the most commonly used illicit drug in the United States.

Multifamily housing providers are generally permitted to prohibit the use or possession of marijuana as part of a smoke-free policy, but consider being explicit about marijuana in your smoke-free policy. However, thirty (30) states plus the District of Columbia have legalized marijuana either for recreational or medicinal uses. This conflict between federal and state law creates confusion in the multifamily property management industry. As you face questions about marijuana use, it may help to keep in mind that federal law supersedes state law. Among other things, this means that you are not obligated to “permit” breaking federal law to allow a resident to do something that is legal under state law.

Marijuana and Implications for Multifamily Properties

  • Multifamily housing providers are generally free to prohibit the use or possession of marijuana as part of a smoke-free policy, even in states where recreational or medical marijuana use is allowed (but see below explanation regarding accommodations). Consider being explicit about marijuana in your smoke-free policy. Articulate a clear enforcement plan and apply the policy consistently to all prospects and residents to avoid discrimination claims.
  • Under the Quality Housing and Work Responsibility Act of 1998 (QHWRA), many HUD-assisted housing owners must deny admission to assisted housing for any household with a member determined to be illegally using a controlled substance. The QHWRA also permits owners to evict current residents for their use of marijuana.

 Marijuana and Disability

If you receive a request for an accommodation for medical marijuana use based on a tenant or applicant’s disability, you should proceed carefully. The law on this issue is evolving rapidly, and it is advisable to seek legal counsel on these requests. The FHA is clear that a disability “does not include current, illegal use of or addiction to a controlled substance.” However, a tenant may be taking medical marijuana to treat a condition that is considered a disability. Even if a person has a recognized disability, there are reasons that an accommodation to smoke marijuana might not be considered “reasonable.” For example, an accommodation that allows conduct in violation of a federal law constitutes an undue burden. Further, other problems exist such as second-hand marijuana smoke traveling through ventilation systems and bothering residents in common areas. However you proceed, be consistent with all prospects and residents in similar situations. This is just the tip of the iceberg on this topic, and a lack of relevant case law makes it tricky to navigate. The courts will likely address this issue in the coming years and provide some clarity. Until then, consider your policies carefully, and err on the side of consulting an attorney as you face marijuana-related issues at your multifamily properties.

 A Colorado Law Professor Gives His View

In addition to these tips above, Sam Kamin, a law professor and director of the Constitutional Rights and Remedies Program at the University of Denver’s Sturm College of Law in Colorado, posed several questions on this issue for multifamily owners and property managers in a recent article from the Urban Land Institute. He states that getting a federally backed loan from a bank or lending institution means the property owner taking out that loan must agree to abide by all federal laws, such as those including marijuana use. 

“Could a federal agent arrest a property manager for knowingly allowing medical marijuana use in an apartment unit? If the owner established a policy that allowed for observation of state rights – despite the federal conflict – could the principals be arrested? The answer appears to be yes, albeit unlikely. Property owners who allow marijuana on their premises also risk losing their buildings to the federal government through civil forfeiture cases. “The federal government isn’t actively doing that, but it remains a remote possibility,” says Kamin. One might argue that “the safest course is to prohibit all marijuana,” says Kamin. “Amendment 64 explicitly gave property owners [in Colorado] the right to exclude marijuana from their premises. Landlords can put in the lease that a tenant [must] not possess marijuana, not grow marijuana, and not smoke marijuana, and that would be permissible.”

Also in the article, Alex Kreit, a law professor at the Thomas Jefferson School of Law in San Diego and author of Controlled Substances: Crime, Regulation, and Policy (Carolina Academic Press, 2013), says, “I think it is a state-by-state question of whether there are any potential discrimination-type protections that might apply to medical marijuana patients. “In a state with explicit protection, there is the further question of, ‘Do you have to accommodate everything this patient wants to do, or would it be enough to say they have to consume the medicine in the form of an edible product?’ And if so, are you discriminating by treating consumers differently in allowing exceptions to the lease limitations and compounding your potential liability?” For landlords and building managers dealing with complaints from tenants re­­garding marijuana smoke, stepping in as quickly as possible to work out a solution may be the best course of action to avoid an escalation of the situation. “My take is that it is probably not that dissimilar in many ways from any other kind of landlord/tenant dispute,” Kreit said. “At the end of the day, I imagine that to the extent it is at all possible, you’re probably better off trying to resolve the issue without it becoming some sort of a legal process.”

The Grace Hill training tip focuses on the issue of marijuana and multifamily property managers and owners. For nearly two decades, Grace Hill has been developing best-in-class online training courseware and administration solely for the Property Management Industry, designed to help people, teams and companies improve performance and reduce risk.

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