Filed Under (Leases and Landlord Tenant) on 05-15-2012
If you are one of Colorado’s 161,000 certified users of marijuana – and you’re a tenant – you may wonder if it affects your housing situation.
Even though in Colorado the use of marijuana is legal in some situations, under federal statutes marijuana is a “controlled substance,” and owning it, selling it and using it are illegal under a number of federal laws.
That said, should you tell your landlord about your medical marijuana need and use? What about the neighbors? Does being a “certified user” give you protections and privileges of someone with a medical disability? Can your landlord evict you for smoking pot?
Here’s what we know so far based on case law and common sense:
Q. Do I need to tell my landlord about my medical need for marijuana?
A. It’s up to you. Initially, you might think, why bother to talk to your landlord at all?
The answer is yes, because of what could happen if you don’t communicate. Many leases include language that bars any criminal activity in the unit. And even though Colorado Amendment 20 permits the use of medical marijuana under certain limited circumstances, federal law overrides state law. So even if you are a certified user of pot, you could find yourself evicted if you don’t talk to your landlord.
The way you use marijuana may also have an impact on your landlord’s point of view. Smoking may not be allowed within your premises. Landlords are often concerned about the impact of smoking on the actual property and the neighbors. If so, you may want to consider other modes of delivery (e.g. edibles). Or, you could agree that while you won’t smoke, it’s okay to use a vaporizer.
Finally, remember, even though you agree with your landlord with regard to your use, you may still impact other parties.
Q. Do I need to tell my neighbors about my medical need?
A: You don’t have to, but might consider it, depending on how your use impacts them. Your neighbors can file a nuisance complaint if pot smoke and smells waft over to their property. To avoid that, you might want to forewarn them and figure out a way to meet your needs in a way that doesn’t bother them.
Q. Aren’t landlords required to not discriminate against me based on my disability, when I apply for new housing as a tenant?
A. Yes and no. The only thing landlords must do is follow the Federal Fair Housing Act, and local ordinances in specific Colorado counties that bar them 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.