Q: I recently listed a single-family home for lease. The Owner does not want a tenant who smokes marijuana. I am concerned about telling prospective tenants that they cannot smoke marijuana now that it is legal to do so. What should I tell the Owner and prospective Tenants?
A: As is detailed in most residential leases, including the C.A.R. Residential Lease (Form LR), Landlords may prohibit any conduct that violates any law (federal, state or local). Although the law in California has recently changed regarding the personal use of marijuana, federal law still considers the use of marijuana to be an illegal activity. Effective January 4, 2018, the Justice Department formally rescinded their prior program under President Obama and they may now have the power to enforce cannabis-related crimes in California.
California’s new law regarding marijuana (Prop. 64 which is now Health & Safety Code Section 1362.5) provides that the personal right to possess, process, purchase, obtain, cultivate, plant, and other activities connected with marijuana does not affect the ability of a property owner, such as a landlord, from prohibiting or restricting cannabis use on their property.
It should also be recognized that nothing in the new law allows someone to smoke cannabis where smoking tobacco is already prohibited. Landlords are specifically authorized to prohibit smoking tobacco in any portion of their rental property under Civil Code Section 1947. Thus, Landlords can legally prohibit smoking of cannabis regardless of the changes in California’s laws.
For more information, see the updated C.A.R. Legal Memo entitled “Marijuana Issues for REALTORS®” at https://www.car.org/riskmanagement/qa/miscellaneous-folder/marijuanaissues
.
PRACTICE TIPS
- Landlords should be advised that if they wish to restrict use, cultivation and selling of marijuana that they should use a rental form which prohibits that activity. See, for example, CAR form “Residential Lease or Month-to-Month Rental Agreement” (ZipForms Form LR
revised 6/17). Paragraph 14 prohibits smoking of all substances and paragraph 15A prohibits using, manufacturing, selling, storing illicit drugs or other contraband or “violate any law or ordinance” which would necessarily include cannabis.
- Landlords should be encouraged to have a written Rules and Regulations handout which details not only the smoking rules but all other rules that the Landlord intends to enforce. Landlords should be encouraged to work with their own local Landlord/Tenant attorney as to what rules can and cannot be included.
- Prospective Tenants should be provided with the Landlord’s written Rules and Regulations at the earliest possible opportunity and no later than at the time the Tenant is provided with the Lease.
- In the absence of written Rules and Regulations, Tenants should be advised of the written prohibitions, if any, that are contained in the Lease, including but not limited to those rules regarding Smoking any substances.
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