Mountain Law: Residential leases and marijuana
Special to the Daily
There are many issues raised in the context of residential tenants and marijuana, some of which remain legally unclear. This article discusses a number of issues and I may follow up with another article about more.
First, there may be a misconception that marijuana is now legal, which is untrue. Most anything to do with marijuana remains illegal because it violates federal law. The situation is that Colorado state law now allows use and cultivation of marijuana in certain circumstances, and the federal government is being less active in enforcing federal marijuana laws. However, landlords and tenants should understand that the federal government can, and does, continue to enforce marijuana laws in Colorado from time to time, particularly where a person is also accused of other law violations.
Second, landlords often wonder if they are allowed to ban marijuana in a leased premises. The answer is yes. Many standard leases already provide that the tenant will not violate any laws. Under such broad language, the use and/or cultivation of marijuana by the tenant already violates the lease (because marijuana violates federal law) and thus can be grounds for eviction. Landlords may add even more express language to their leases disallowing marijuana in the premises, if desired. Marijuana is automatically disallowed with regard to any Section 8 (low-income) housing, which is federally regulated. There is apparently no requirement for landlords to accommodate the use of medical marijuana under the Americans with Disabilities Act because landlords need not accommodate an activity that violates federal law.
Third, some landlords go the other direction and wonder whether they may permit marijuana in a leased premises. The answer is that landlords may allow marijuana, but it raises tricky issues. Given that marijuana remains illegal, it might be most prudent for these landlords to turn a blind eye to the tenants’ activities rather than expressly provide in the lease that marijuana is permitted. Landlords should consider that allowing marijuana may expose them to liability. First, marijuana may violate restrictive covenants and result in enforcement against the landlord by a homeowners association or neighboring owner. Second, marijuana may violate zoning laws and result in enforcement against the landlord by the local government. Third, there is the chance that the federal government could seek to penalize the landlord for allowing illegal activity.
Fourth, even if a landlord allows marijuana, many local governments require tenants to obtain a permit before using and/or cultivating marijuana in a leased premises. For instance, such permits are required by Summit County and the town of Breckenridge. The permits typically require tenants to obtain express permission from their landlord to use marijuana in the premises and impose other restrictions (such as that marijuana odor may not escape the premises and that a grow area may need to be secured). Landlords and tenants should check local ordinances for details.
Fifth, where a landlord chooses to expressly allow marijuana, the landlord should consider addressing marijuana issues in the lease. For example, a landlord could require proof that a tenant using medical marijuana is fully compliant with state law. Landlords allowing marijuana may also wish to require a larger security deposit (particularly to address mold issues that commonly result from marijuana cultivation); to require the tenant to pay for any increases in the landlord’s insurance premiums or utility bills caused by the marijuana (particularly energy bills caused by grow lamps); and to indemnify the landlord from any claims arising from the tenant’s marijuana-related activities.
In sum, landlords are not required to allow marijuana in their leased premises. If they do so, they should be cautious concerning potential liability and consider including appropriate protections in the lease.
Contact Noah Klug at (970) 468-4953 or Noah@TheKlugLawFirm.com.
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