(Bloomberg) – Legalized marijuana has left apartment landlords in a haze (of confusion).
In recent years, tenant demand for smoke-free living environments has led property managers to extend bans on cigarette smoking to cover marijuana. But some landlords worry that forbidding the use of medical marijuana might put them on the wrong side of fair housing law.
The uncertainty derives from a tension between state laws legalizing marijuana and federal rules that outlaw the substance. A 2011 memo from the U.S. Department of Housing and Urban Development instructed local housing authorities to reject medical marijuana users applying for federally subsidized housing, because federal law defines marijuana as a Schedule I drug. But state laws intended to prevent landlords from discriminating against renters on the basis of a disability could offer tenants a greater measure of protection.
“You could have a tenant say, 'It's a violation for you to even ask me about it,'” said Morgan Stewart, a partner at law firm Manly, Stewart & Finaldi in Irvine, Calif. “Maybe the landlord's response is, 'We operate pursuant to federal law.' 'Well, OK, but I'm a California tenant.' Landlords are stuck in the middle.”
Related: Marijuana: An emeging coverage risk
In May, the California state Assembly passed a bill that gives landlords explicit permission to ban marijuana smoking, even for medical use. The state Senate has yet to vote on the bill, which follows a state law passed in 2014 that spelled out the right of landlords to ban tobacco smoking on their properties.
Property owners are increasingly making apartment complexes smoke-free to appeal to tenants who see smoke as a health risk or a nuisance, said Tom Bannon, chief executive of the California Apartment Association, a landlord group that supports the law. Smoke in an apartment also increases the likelihood that the landlord will have to spend money on new carpeting or fresh paint when a tenant moves out.
“We believe what goes on in someone's unit, that's their opportunity to do what they want, as long as they don't infringe on other people's rights,” Bannon said. “This doesn't stop them from other uses. There are things like edibles, or oils, or whatever.”
The consequences of the California law depend on the details and whether it's actually enforced, said Chris Lindsey, senior legislative analyst at the Marijuana Policy Project, a pro-legalization group. (One sticky point for Lindsey: whether vaporizing devices are included in a smoking ban.) To some degree, landlords already have the ability to undermine legalization efforts, which have helped pass some form of marijuana use in 24 states and the District of Columbia.
“Even in legalization states, you can't smoke in public, they don't allow the marijuana equivalent of a bar, and now [your] landlord says you can't smoke at home either,” Lindsey said. “You can end up in a situation where it's legal, but you can't smoke anywhere.”
For decades, pot was illegal, which didn't prevent people from shoving a towel under their door and smoking in their rental apartments. Legalization may be leading landlords to ban smoking and hand out brownie recipes, but smoke-free policies won't necessarily stop people from lighting up, said Bret Sachter, an attorney in Seattle, where recreational marijuana use is legal under Washington state law: “I never knew of someone being evicted for marijuana use when it wasn't legal, and I haven't seen landlords updating their leases now that it is.”
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