Tuesday, October 25, 2016

Medical Marijuana in Apartments

By Kenneth A. Krems

Issues regarding medical marijuana are beginning to confront landlords in Massachusetts.  This is because in 2012, voters overwhelmingly approved a referendum allowing for the use of medical marijuana.  Implementation of this has been very slow, but it is now picking up steam and a number of dispensaries have opened.  Also, here in Massachusetts, recreational marijuana is on the ballot this November.

Residents in both completely smoke-free buildings and buildings which are not smoke-free often complain more about the odor of marijuana wafting into their apartments than they do about cigarette smoke coming into their units.  Smoke free or not, leases should provide that the illegal possession or use of marijuana is prohibited.  Since 2009, the possession of one ounce or less of marijuana has no longer been a criminal offense here.  However, possession of marijuana is still a federal crime.  In addition to the violation of federal law, marijuana smoke entering other units or being in the hallways interferes with the quiet enjoyment of other residents.  If a resident continues to smoke marijuana in violation of the lease, he should be given several oral and written warnings, and if the behavior continues he can be evicted.

But what about medical marijuana?  A resident who wants to use medical marijuana will need a medical marijuana card, and to get that she will need a doctor’s authorization that she has a qualifying disability.  Since the resident will have a disability, do we have to allow her to smoke medical marijuana as a reasonable accommodation?

Under Massachusetts and federal law it is unlawful for a landlord to refuse to make a reasonable accommodation in rules, policies, practices or services when the accommodation is necessary to afford a disabled person an equal opportunity to use and enjoy the apartment.

The Massachusetts medical marijuana statute doesn’t cover the use of medical marijuana in housing, but it does provide that “nothing in this law requires the violation of federal law or purports to give immunity under federal law.”

A 2011 memorandum from the U.S. Department of Housing and Urban Development dealing with the use of medical marijuana in multifamily assisted properties provides that owners of federally assisted housing are required to deny admission to any household with a member who is using medical marijuana; that owners cannot have lease provisions that permit occupancy by a household member who is using medical marijuana; and that owners can terminate the tenancy of current households with a member who is using medical marijuana if the owner wishes to do so.  HUD concluded that owners “may not grant reasonable accommodations that would allow tenants to grow, use, otherwise possess, or distribute medical marijuana, even if in doing so such tenants are complying with state laws authorizing medical marijuana-related conduct.”

There are no Massachusetts cases on the issue of the use of medical marijuana in apartments or condos.  However, in December, 2014 a federal court in Michigan in Forest City Residential Management, Inc. v. Beasley, 71 F.Supp.3d 715 (E.D. Mich. 2014) was faced with this question.  In that case a tenant possessed a medical marijuana card and asked the landlord for a reasonable accommodation to allow him to smoke marijuana in his apartment.

The court stated that federal law making the use of marijuana a crime supersedes state medical marijuana laws allowing marijuana use, so to require a landlord to grant this accommodation would not be reasonable because it would require the landlord to violate federal law.  The court stated:  “Such a requirement would fundamentally alter the nature of [the landlord’s] operation by thwarting Congress’s mission to provide drug-free federally assisted housing.”  The court held that a landlord is not required to grant a reasonable accommodation to allow a tenant to use medical marijuana.

So as of now, a landlord does not have to allow a tenant to use medical marijuana inside the building.  If a tenant wants to smoke marijuana for medical purposes, he can go outside to a location off the property where the smoke won’t bother other residents.  If the tenant is going to use medical marijuana inside the apartment, the tenant should have to ingest it in some other form, such as a pill or a brownie, or use a topical oil.

There is no question that in the next few years there will be cases in Massachusetts dealing with whether a landlord has to allow medical marijuana to be smoked in its building.  We’ll look forward to those decisions, but until a court rules otherwise landlords don’t have to allow this.

Co-chair of REBA’s residential landlord/tenant section, Ken Krems is a partner in the Boston office of Shaevel & Krems, LLP, where he focuses his practice on real estate management. Ken represents large residential management companies and is responsible for more than 11,000 units of housing in Massachusetts; he also represents landlords and tenants regarding commercial leasing issues, condominium associations and a buyers and sellers of real estate.  Ken can be reached at kkrems@shaevelkrems.com. 

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