How Does the New Marijuana Law Affect Landlords?

You’re certainly heard the news by now: Proposition 64, which legalized recreational marijuana use in California, passed and has been instituted throughout our state. Of course, as with any new law, we will continue to watch and see how this affects all of us in numerous ways. As real estate attorneys, our specific interest lies in how Proposition 64 impacts landlords.

Landlords can forbid possession and use of marijuana on their properties. Proposition 64 made this issue clear. However, as we all know, forbidding something within a lease and enforcing the terms of the lease are two different issues!

All leases should be reviewed and amended, if the landlord wishes to include marijuana smoke within “no smoking” rules (property owners might also wish to address “vaping” at this time).

If a property is not already “smoke free”, landlords should consider whether they wish to make that move at this time, or at least prohibit smoking of marijuana. It is possible to allow one type of smoking while banning another type, if that is what an owner wishes to do.

Landlords might also wish to address the issue of growing plants within dwellings. Under Civil Code 1940.10, tenants in single family homes or duplexes have the right to pursue “personal agriculture” within portable containers, as approved by the landlord, subject to certain conditions. However, since this law specifically excludes marijuana, landlords are not required by law to allow marijuana plants.

When creating lease provisions with regard to growth or use of marijuana, landlords should carefully describe the consequences of breaking these rules. Real estate attorneys can aid in making these changes lawfully.

Proposition 64 did not change California’s standing medical marijuana laws. With regard to housing, we’ve yet to see this issue fully fleshed out in our courts. Theoretically, however, landlords run the risk of discriminatory housing suits filed by medical marijuana patients if they are not allowed to grow and possess plants while complying with the law.

Landlords should also be aware that Proposition 64 did not modify the existing Federal laws which prohibit use, sale, and cultivation of marijuana. This is an additional issue that should be discussed with our real estate attorneys.


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