Landlords Can Put The Kibosh On Cannabis

By DANIEL BORNSTEIN, ESQ.

Although California has given adults the green light to ingest marijuana and grow it at home, Bay Area residents have another hurdle to jump – landlords.

As a result of the passage of Proposition 64 in 2016, the recreational use of marijuana by adults ages 21 and older will be legal in California, effective January 1, 2018. Understanding what this means for your property and how to handle this change in the law is important for all rental unit owners and managers.  
Bornstein Law has fielded many questions from landlords regarding their tenant’s use of marijuana. However, what is even more concerning to property owners is when they find out the dwelling is being used to grow pot plants.
More often than not, landlords aren’t looking to police what residents do in the privacy of their apartments, but smoking weed can affect neighbors and give rise to a nuisance complaint, especially in the close quarters of a multi-unit dwelling. Growing plants is no better. They, too, create a stench, become a breeding ground for mold and rack up high utility bills. Add in secondary issues that often arise from marijuana and so it’s no wonder why rental property units are turning California’s green light to red.
Since this topic has created a lot of buzz (no pun intended), we wanted to resolve the quandary of what a landlord’s rights are.
First, some backdrop. Proposition 64 legalized recreational use of marijuana in California, with several limitations. The possession, distribution and use of marijuana, though, is prohibited under Federal Law (Controlled Substances Act)

Although Civil Codes allow residents to engage in “personal agriculture” in portable containers approved by the rental unit owner in a “private area”, Civil Code Section 1940.10(a)(3) notably excludes any unlawful crops or substances, so Bay Area landlords are on solid legal footing in prohibiting the cultivation of marijuana. You can also put the kibosh on smoking cannabis, just as you can ban cigarette smoking.
Sometimes, however, landlords will encounter tenants who claim that the marijuana usage or growing is allowed for medical purposes. It’s worth noting that Proposition 64 did not meddle with California’s medical marijuana laws. If you have a tenant that is asserting a right to use or cultivate marijuana in your rental unit for therapeutic reasons, please contact our office, as this raises issues related to disability-related accommodations and becomes a little murky. For the time being, we’ll move onto the more mundane.
Landlords can explicitly prohibit renters from using or growing pot by including the rule as a clause in the lease. If a tenant claims that smoking marijuana is legal, you can kill the buzz by reminding them that the ironclad lease makes the state law irrelevant. If a tenant ignores the clause in the lease, you may allow them to remedy the situation with a formalized cure or quit notice and any subsequent use or cultivation of marijuana will constitute a reason to evict the tenant, for “just cause”.
Years ago, the issue of smoking in multi-unit homes forced landlords to serve as a referee between smoking tenants and concerned residents with asthma or children that were inhaling the smoke. These issues, with help from the anti-smoking revolution, made it routine for landlords to include clauses that prohibited smoking, but properties should now review their lease to ensure their provisions will allow them to prohibit or control marijuana use, as well as prohibiting marijuana cultivation. For assistance with lease provisions or notices of change of terms of tenancies to address these issues, contact the landlord attorneys of Bornstein Law.
In parting thoughts, we wanted to reiterate the importance of having an airtight (shall we say marijuana tight?) lease. One common problem we’ve seen is landlords using stale, bad lease agreements that do not adequately protect their rental business. Just like you go to the dentist for a cleaning, it is always prudent to sit down with an attorney to periodically review the documents you are using to ensure compliance with the law and of equal importance, you are covered in case something goes awry.
Finally, however trendy the topic of cannabis use is, much like the Airbnb phenomena, we want to stress that you need to know what is going on in your rental unit. We live in a free society, but you have reign on what is transpiring in and on your property.
Do you suspect that a tenant is smoking or growing marijuana on your premises? That brings up an altogether new issue of legally entering and inspecting the residence, a topic we will reserve for another blog post. Follow us on Facebook to stay in the know.
As the founding attorney of Bornstein Law, Broker of Record for Bay Property Group and expert witness, Daniel Bornstein is a foremost and well-respected expert in landlord-tenant disputes and other property management issues with over 23 years of experience in handling real estate and civil litigation related disputes in and throughout the Bay Area. More than a litigator, Daniel manages rental properties, assists in completing real estate transactions and is well known for his educational seminars. He is always eager to answer questions and engage with Bay Area landlords, property owners and real estate professionals. Email him today.