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Landlords are finding themselves between a rock and a hard place when it comes to marijuana. Perhaps no American issue has become more confusing than the rules about pot.

Tenants and legalized potSeven states and the District of Columbia have legalized recreational marijuana use, more than a dozen have decriminalized it and most allow medical use. Each state has its own, unique standards about where, when and how it can be consumed or smoked.

Some cities have made it a local issue and passed their own ordinances. On top of that, it remains a federally controlled substance and the Trump Administration has green-lighted greater enforcement. All these conflicting signals may have you concerned about pot use in your rental units.


Strictly Illegal

There are six states that prohibit all marijuana use. These are the places where the protections for landlords against pot use are the most needed. The last thing you want is a knock on the door from law enforcement officials. Here are some basic steps you can take to avoid a bust over pot use in your rental units.

Put a no-smoking clause into your lease agreement. Specify any type of smoke-generating product, including cigars, cigarettes, pipes, e-cigarettes, vape rigs, etc. Make it clear that smoking of any kind is prohibited on the property. This provides you with a cause for eviction if you have a pot problem.

You can also include an automatic cleaning fee for smoke-related damage as a deterrent. Some insurance companies may even lower your premiums for making the property a smoke-free zone.


Medical Marijuana States

In states that have approved marijuana use with a prescription, landlords are put in the most awkward situation. On one hand, you cannot discriminate against someone with a disability. On the other hand, you have the right to prohibit the use of a federally banned substance.

In these politically polarized times, it’s wise to consult with an attorney about whether to impose a straightforward ban in the lease or not. Judges that favor local statutes could turn down an eviction action. That could lead to a costly appeal process or even a specious lawsuit filed against you by the tenant claiming discrimination. A standard non-smoking residence clause is a solid protection. But get sound legal advice about perceived discrimination.


Lease questions about medical marijuanaTotally Legal States

In states that have completely legalized marijuana use, you still enjoy considerable control over what happens on your property. But it’s wise to create a more formal portion of the lease agreement specifically dedicated to tobacco and cannabis. Include a separate no-smoking addendum page that requires additional signatures and dates. Expressly state an understanding that cannabis is legal, but this is a non-smoking residence.

In places where marijuana has been fully legalized, it’s imperative to expressly ban all smoking products. That position may seem more even handed and less like you are discriminating against pot smokers.


Pot Evictions

Concerns about medical marijuanaIf you discover pot use in your rental units, it may be in your best interest to document the first incident and send a warning letter via certified mail. If it continues, you have established a pattern of behavior that violates the lease agreement.

In your eviction complaint, you can include the warning letter, the signed no-smoking addendum and general lease. You can also point to unlawful conduct because marijuana remains illegal under the federal Controlled Substance Act.

As a landlord, you hold the authority to set reasonable rules in a lease about conduct on your property. By expressly stating these expectations, you can evict tenants that break the terms of the agreement. There's no reason to let your rental units go up in smoke.     


Jim V earned a Master’s Degree in English Literature with a concentration in the Modern American Novel.  He grew up in a construction family. Worked as a carpentry, mason’s apprentice and contractor. Jim was the editor of a weekly Real Estate publication for 5 years during his career in print media, in addition to the many years of hands-on experience in construction as a general contractor and carpenter.