On November 8, 2016, California voters passed Proposition 64 by a margin of 56-44 percent. With the passage of this binding referendum, possession of up to 28.5 grams (slightly more than one ounce) of marijuana became legal for those at least 21 years old. Also, those of sufficient age are permitted to cultivate as many as six marijuana plants as long as they are retained for personal use only.
Voters in Nevada and Massachusetts also legalized recreational marijuana use on Election Day. The New York Times notes that recreational use of marijuana by those at least 21 years old is now legal for more than 20 percent of the U.S. population.
Marijuana and Landlord-Tenant Rights
What are the implications of Proposition 64 for California landlord-tenant rights?
Landlord’s Right to Prohibit Use
Importantly, California landlords still have the right to forbid the use of marijuana on their property. They also have the right to prohibit the cultivation of marijuana plants. However, such prohibitions must be properly addressed in the lease agreement, just like “no pets” and “no tobacco use” clauses.
Tenant’s Right to Quiet Enjoyment
When leases do not prohibit marijuana use, property owners may have to deal with conflicting tenant rights when other renters complain of the smell or possible health consequences of inhaling secondhand smoke. Tenants generally have a “Right to Quiet Enjoyment” whether it is noted in a lease or not. Loud noises, bad odors, smoke, excessive dust and high temperatures are some elements which may interfere with this right.
At the same time, a tenant smoking pot legally may counter that he/she has a right to quiet enjoyment of marijuana.
If tenants have competing legal claims, a landlord might try to resolve the issue of objectionable odors by suggesting that:
- The marijuana user shifts to consumption of the substance in food or through the use of a vaporizer.
- The tenant use a quality air filter with sufficient air-exchange capability.
- The tenant closes windows when smoking marijuana.
- Marijuana use be confined to areas near appropriate windows or doorways that facilitate ventilation.
Evictions and Just Cause
As a final option, the conflicting rights of marijuana users and other tenants may lead to an eviction action. However, it is important that a landlord have “just cause” when commencing an eviction. When there is a valid fixed-term lease prohibiting marijuana use, action is possible with a three-day notice to either correct a lease violation or move out.
Proposition 64 adds a class of recreational marijuana users in a state where there are also a group of medical marijuana users. The rights of medical marijuana users in light of Proposition 64 are not entirely clear, and different courts might adjudicate cases in different ways. Fair housing and anti-discrimination laws may come into play in some cases. It is advisable to consult with an attorney when tenants complain about another tenant using medical marijuana.
Although a fixed-term lease is a binding contract, not all terms of a lease are necessarily legal and binding. Sometimes, a tenant will dispute an eviction by arguing that certain lease clauses are not legal. For example, the exact language is important in no smoking clauses. When only tobacco products are referenced, there is no implied prohibition of marijuana use.
Since marijuana possession is still against federal law, lease provisions that prohibit all violations of state and federal laws might be used to evict a pot smoker. Also, even with the passage of Proposition 64, possession of more than one ounce remains illegal. Possession for recreational use by those under the age of 21 is also illegal.
Given the provisions of Proposition 64, landlords are well-advised to explicitly address marijuana use in their leases. An attorney focused on relevant areas of the law can work to draft lease clauses that are legal and enforceable. The preceding information is strictly informational and should not be construed as legal advice.
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