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.
