The legalization of medical and recreation marijuana usage has forced the hand of Colorado landlords pushing them to make a decision about whether or not they will allow tenants to use medical marijuana or other consumables in or on their property. And it’s a decision that can’t be made lightly.
Amendment 64 has created an interesting, albeit murky, debate amongst the rental property community.
Here are the highlights:
- Federal and state laws differ from one another.
- HUD’s viewpoint is that marijuana use, even for medical purposes, should not be allowed.
- HUD is against housing providers granting reasonable accommodation requests related to medical marijuana, even in states like Colorado that have a Constitution that allows it.
- The prohibition policy is legally defensible because marijuana use or possession is a felony under the federal Controlled Substances Act.
- It is extremely unlikely that the federal government would take criminal action against individual using medical or recreational marijuana who is obeying state law regarding usage.
- Tenants with a medical marijuana cards can ask you for reasonable accommodations under the ADA like (wheelchair ramps and wider doorways) despite the HUD position.
- Landlords must seek additional legal counsel if the agree to allow growing on their property-- if you allow growing on-premise, and it turns out the renters are doing something illegally or violating legal code, the landlord might be brought into and legal proceedings, and held equally accountable.
- Other renters and people living near or on your property might not appreciate the allowance if they have children or pets, it is important to consider how this might affect your business.
So where does this leave the landlord? General consensus is that as long as a landlord has an ENFORCED policy in place that they disclose and follow consistently, they probably won’t get into trouble for allowing or not allowing marijuana.
Landlords can protect themselves with a policy included in a published “rental applicant selection criteria” document. When someone fills out an application they need to communicate to the applicant what their selection criteria is for marijuana. Then, when they sign the lease, the landlord should reiterate their policy through a thorough Crime and Drug-Free Addendum which further details their policy on marijuana and helps to further protect against liability.
We are not suggesting landlords allow or disallow the use of medical marijuana or other consumables, but they do need to have a policy and follow it consistently— as with anything in property management.
To learn more about the new language to include in your rental app, lease and crime-free addendum, check out Scott Lukes’ presentation at the ICOR March Monthly Meeting:
March 11th, 2014
March 12th, 2014