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.

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