What Landlords Need to Know About Medical Marijuana in Colorado

Filed Under (Leases and Landlord Tenant) on 03-27-2012

Landlord Rights, Tenant Rights, Rental Lease, Lease Agreements

By Rachel Brand and Victor M. Grimm, Esq.

In light of the recent federal crackdown on medical marijuana dispensaries near Colorado schools, landlords may be wondering if they can and should bar pot smoking on their property.

In Colorado, patients with a medical need can possess up to two ounces of marijuana. Individuals deemed “caregivers” can also possess up to six plants. As of last November, more than 161,000 Coloradans had applied for state cards as certified marijuana users. So what does this mean for residential landlords?

Q. Because of the law – and the number of people with “certified user” cards – am I now required to rent to medical marijuana users?

A. No. First, just because something is legal under Colorado law doesn’t mean you have to allow it in your property – for instance, you can prohibit smoking, or dogs and cats, or loud parties.

The only thing you must do is follow the federal Fair Housing Act, and local ordinances in specific Colorado counties, that bar landlords from discriminating against potential tenants because of race, color, sex, marital status, family status, disabilities or religion.

A recent interpretation of that law found that just because someone uses medical marijuana, he or she doesn’t qualify as disabled under the Americans with Disabilities Act, or ADA. Of course, your potential tenant might be disabled due to other factors under the ADA.  Furthermore, the possession, cultivation and distribution of marijuana remains a violation of federal law.

So, in short, there’s no legal requirement to rent to medical marijuana users.

Q. How can I make sure my current tenants don’t use or grow medical marijuana?

A. Almost all relationships between landlords and tenants come down to what’s written in the lease.  All standard leases bar tenants from any activities that are a violation of federal law.  And even though Colorado Amendment 20 permits the use of medical marijuana under certain limited circumstances, federal law overrides state law in this case.

Bradford Publishing’s most current Colorado residential lease includes specific language prohibiting the cultivation, possession or use of marijuana.

Q. If I find out my tenants are using or growing medical marijuana, am I required to evict them?

A. It’s up to you.

First, determine if the lease terms have been violated. If so, then just like any other violation of the lease, you can decide if you wish to exercise your right to declare a default.
If you choose not to declare a default, be aware that the tenant may use such inaction as an argument that you waived your rights in the future to declare such a default.

Second, you as landlord should consider the well being of other tenants upon the property. Ask yourself, is this activity impacting the use and enjoyment of the premises by the other tenants?

Finally, as mentioned before, as this law currently exists, your tenant is theoretically in violation of federal law. Are you comfortable with such a situation occurring on your property?

Q.  I’m open-minded, and the use of marijuana on my property doesn’t bother me. Do I need to write up anything in my lease specifically allowing it?

A. If you personally feel comfortable with medical marijuana, you then must ask yourself, “under what circumstances will I permit it on my property?”  After all, your property will experience different impacts from smoking versus water pipe use versus growing – but make no mistake, the use of marijuana will impact your property.

While it may seem that growing marijuana indoors is like growing any other plant, in Colorado’s dry, cold climate, these plants need plenty of humidity and warmth. The moisture and heat lamp systems can lead to mold and high electricity bills. If you okay marijuana growing, make sure your tenants pay for electricity and that the property has adequate ventilation.

If you’re simply willing to allow marijuana smoking in your property, consider advertising it as “smoking okay.” But remember that your neighbors can file a nuisance compliant if the smell of marijuana wafts from the rental property to theirs.

You might think – okay, I’ll allow medical marijuana and I’ll charge a higher rent for that. If you choose to charge a higher rent in order to accommodate medical marijuana users, bear in mind that you may risk forfeiting your property under federal law and even getting prosecuted for a federal crime.

Specifically, if there is evidence demonstrating culpability on the landlord’s part for violation of federal law, it will make it much easier for the landlord to be deemed a party participating in such violation.

  • Robert Chase

    I consider your post to be an unacceptable blurring of the lines between providing legal information and conducting political advocacy against cannabis. Given Colorado’s constitutional provision for patients whose doctors have recommended that they use cannabis to do so legally almost twelve years ago, the assertion that a standard lease includes proscriptions on violating Federal law is false (and any landlord should be literate enough to modify leases which do not respect the supreme law of our State appropriately without consulting a lawyer). Your assertion that activities of tenants which comport with Article XVIII, Section 14 of the Constitution of Colorado “will impact your property” is also simply false (and unsupported). Cannabis can readily be grown safely indoors, and most patients and caregivers are doing so on a small scale. Federal policy has not been to prosecute patients or caregivers (much less a patient’s landlord); heretofore it has extended no further than threatening some dispensaries’ owners with prosecution. If landlords are respecting tenants’ privacy and tenants are in turn respecting their neighbors, the issue of the use of cannabis should not arise, and no landlord tempted to violate the Federal CSA. Even so foolish an arrangement as you describe would be unlikely to arouse Federal scrutiny unless tenants were growing in excess of ninety-nine plants. The advice to landlords lawyers in Colorado should be giving regarding medical cannabis is “leave well enough alone” — don’t rent to irresposible tenants, but do not infer that tenants are irresponsible just because they use cannabis.

    • http://www.bradfordpublishing.com/ Melissa

      Robert, thanks for reading our blog and commenting on it. It is important to us that the information contained in our blog posts is legally and factually accurate, so we review all blog comments and, should there be any factual or legal inaccuracies discovered, will take immediate steps to correct such matters.

      With respect to your comments, we offer the following responses:

      (Your post is) blurring the lines between providing legal information and conducting political advocacy against cannabis.

      Bradford does not engage in any type of political advocacy on any area of the law. The purpose of the blog entitled “What Landlords Need To Know About Medical Marijuana In Colorado” was simply to inform landlords about the legal implications of medical marijuana upon the property.

      Given Colorado’s constitutional provision for patients whose doctors have recommended that they use cannabis to do so legally almost 12 years ago, the assertion that a standard lease includes proscriptions on violating federal law is false (and any landlord should be literate enough to modify leases which do not respect the supreme law of our state appropriately without consulting a lawyer).:

      It is true that the Colorado Constitution contains a provision for the use of medical marijuana, and there are also state legislative and regulatory mechanisms in place for the licensure of users, caregivers, and dispensaries. But it is legally inaccurate to characterize Colorado Constitution as “the supreme law of our state.” Under the supremacy clause of the United States Constitution, when federal laws conflict with state laws, whether they be contained in state constitutions or legislation or regulations, federal laws take precedence and are “supreme.”

      This is long-standing basic constitutional law and has frequently been applied in the context of state marijuana laws. See e.g. Gonzales v. Raich (previously Ashcroft v. Raich), 545 U.S. 1 (2005). Simply put, the use, possession, and cultivation of marijuana violates federal law. While there certainly advocates on both sides of the matter, unless and until certain federal laws are repealed, this will continue be the law of the land, not only in Colorado, but in all of the United States.

      A typical lease provision will provide: “Tenant agrees to comply with and abide by all federal, state, County and municipal laws and ordinances, and any governing documents if applicable in connection with the occupancy and use of the premises.” So the statement that most leases contain provisions that prohibit the use and cultivation of medical marijuana is not false. This being said, parties are, of course, free to draft their own agreements and modify preprinted agreements in any way as they see fit. This is a personal decision.

      “Your assertion that activities of tenants which comport with article XVII, section 14 of the Constitution of Colorado “will impact your property” is also simply false (and unsupported)….

      Since the use, possession, and cultivation of marijuana are a federal offense, it impacts upon any property in which such activity is conducted. As a practical matter, whether a specific property is subject to a federal raid or federal forfeiture proceedings is clearly unknown. However, notwithstanding earlier Justice Department memoranda that seem to indicate that the federal government will not undertake enforcement actions against partisan entities in compliance with state laws, the federal government has recently, specifically targeted landlords of medical marijuana dispensaries and caregivers in California and Montana and has threatened to undertake forfeiture actions against the landlords.

      “Federal policy has not been to prosecute patients or caregivers (much less a patient’s landlord); heretofore it has extended no further than threatening some dispensaries’ owners with prosecution.”

      Please refer to the recent prosecutions by the federal authorities in Oakland and Montana as well as letters that were specifically sent to landlords and owners of property in California and Colorado. All parties may disagree as to whether such activity by the federal government is advisable, fair, or retaliatory. But the fact remains that these actions are happening, are unpredictable, and are increasing in intensity and scope. Once again, parties are free to undertake any actions that they should so choose, however, assuring residential landlords that they are occupying some type of “safe harbor” is simply legally inaccurate.

      “The advice to landlord’s lawyers in Colorado should be giving regarding medical cannabis is “leave well enough alone”- don’t rent to irresponsible tenants, but do not infer that tenants are irresponsible just because they used cannabis.”

      We have reviewed the blog post carefully and do not believe that it in any way states or infers that individuals who use cannabis are de facto irresponsible. The tone of the article was intended to answer some specific questions such as, “is the landlord required to rent to a party who uses or cultivates medical marijuana?” etc. Just like most other activities upon the premises, it is up to the landlord and tenant to decide what is permissible and what is not.

  • Marcus

    Great post! Very informative and helpful. Thanks!

  • Pingback: “And Don’t Let the Bedbugs Bite” | Bradford Publishing Blog | Colorado Law Articles & Topics()

  • Linda

    I have a problem with persons with a 215 cards being able to leave their rental damaged from their growing. Examples: black mold all over walls, ceilings, doors, carpets, curtains. The moisture from growing is extensive. Landlords health is in jeopardy from having to smell/clean this up. We also had windows and doors broken related to the selling from our rental. Tenant didn’t repair all the electrical alterations they made and many, many holes in the walls (interior and exterior). I don’t have a problem with the card, but with the cultivating being done inside the home!

  • Bill

    Nice to know since I’m considering moving out there next year. Alot of reasons why I’m moving out there one of which is medical marijuana. Considering I’ve been living with AIDS for 20 years and know the medical benefits from it. So what should I do to make sure I get an aprtment/house for rent when I move out there? Maybe talk to a property management service and just tell them the deal?

  • Pueblo

    In Pueblo Colorado there is a marijuana campus where licensed growers can produce in greenhouses and outdoors: Healer’s Farm

  • tess

    What are the rights of those who bought into a HOA, covenanted neighbor that states in the guidelines NO RENTALS, but the house next to me went rental, and I have lived through 3 crazy tenants. It is a rancher with unfinished basement, 1200 sq ft upstairs. 1st group moved in 4 familes, and were always blocking my driveway with their overflow of cars, or trying to use my driveway. 2nd older couple, he had alzheimers, and he would dig up my front yard, my sprinkler system, come in my backyard -confused, obviously, and emergency response was there constantly in the wee hrs. He passed away, but it was a nightmare for a whole yr wondering what he would do next. Now there is a couple who moved in, immediately installed two a/c units that are HUGE-not necessary for that size house, they run 24/7 even on below 50 days, strange smells emitting like BAD air freshner. Dark curtains that never open, keep weird hrs, doesn’t appear they have regular jobs, never use trash service. Everyone tells me I am living by pot growers in the basement. Great, I know that isn’t HOA approved, but what rights do neighbors have? Probably NONE. I would have NEVER, EVER bought here if I had known I would be living by a rental unit. Sorry, renters just don’t KEEP them up. The owner doesn’t live in town, but gets angry that his property is trashed every single time…yeah great for me, brings down my property value because he rents to idiots!!! I have asked the police, they aren’t concerned, too many other things then investigating a pot growing house.

    • http://www.bradfordpublishing.com/ Melissa

      Tess, you need to speak to someone in your HOA Management office if you haven’t already, or find a Real Estate Attorney who specializes is HOA law. You may also be able to find answers through DORA. (Department of Regulatory Agencies).

  • Tess

    Oh he’s growing alright, he showed me, he had cancer, moved here from FL, got the medical card, ingests the oil daily. Ok, fine, but growing a whole basement full of plants even if you are a card holder, in a residential neighbor, close to schools, and certainly NOT suited for a greenhouse is WRONG. I don’t care if you grow as a biz, fine, but not in a home, where TOO many things can go wrong. The owner knows, evidently, is fine with it is what the renter told me. Really, I would be highly concerned as an owner with ANYTHING grown in a basement in that volume, because over time it WILL cause damage, and I am POSITIVE his insurance wouldn’t OK that, it is a commercial enterprise in a residence not equipped for such purposes. Melissa I am familiar with DORA, why, I am a licensed insurance producer. And the owner was with AmFam Insurance for 30 yrs, so he KNOWS better than to allow this, but I bet he is being heavily compensated. I have TALKED to police, HOA-ours is a JOKE, etc…no one seems remotely interested in looking into it officially.

  • Tess

    well it a grow house, that was confirmed. The evidence was when the grow matured. IT STUNK, and everyone figured out what was going on. The guy has a MMJ card, but I don’t think that was intended to mean he could grow a basement full, plus other bedrooms. DEA came because many neighbors complained and he has had to comply. He bought this enormous filter for his upcoming crop. But what I don’t get is WHY is he doing it in a rental, in a suburban neighborhood. The $$$ he spends on equipment is HUGE. Why not grow in a greenhouse, or commercial setting, it is OBVIOUS he doesn’t LIVE in the home, just visits his crop. He dumps chemicals down the driveway every morning and that makes people angry. This is a BUSINESS, and I don’t get WHY he can do this in a neighborhood that can’t have other types of businesses, not zoned for such things. But this is???? To me that is WRONG, in an area close to schools, with lots of kids around.

  • savannah

    HOA approved not one but 2 a/c units that are OVERSIZED, that run 24/7 in the rental house next to me to cool his pot grow in the basement. I filed a complaint that the noise was excessive-it IS. The HOA sent a letter and said the a/c’s were in violation. To take them OUT, gave them 30 days. They reversed that and have allowed them. Obviously he bought them off.. Code enforcement came and said the decibel level was TOO high for a residential area, they were to be fined, and then told they couldn’t run them between 7pm and 7am…they did, I recontacted them and they said that they are reprieving the previous decision. This is a family RESIDENTIAL HOA protected addition. But it is evident that it doesn’t matter, even though his grow EXCEEDS the amount allowed, no ONE will challenge existing laws and covenants because it is a pot grow. They are “exempt”. I told HOA they are worthless if some are exempt from existing covenants. That is WHY we bought here, but they proved if you are “foreign” and don’t want to comply, you don’t have to. The police KNOW, and refuse to do anything, we have a cop that lives on our street, he says they can do what they want. DEA received a complaint from the stench, they told them get a filter, so now they run a filter 24/7 that ADDS to the noise. Pot grows should be done in a commercial setting, NOT a neighborhood, PERIOD. My realtor told me I am screwed, no one wants to buy a home next door to a known pot grower….