The legalization of marijuana use in several states, including California, has created confusion over the conflict now existing between state and federal laws addressing the legality of its use.  Does legalizing marijuana use allow California tenants to successfully argue they are entitled to smoke marijuana in a rental unit? 

The short answer is “no”.  Landlords are allowed to prohibit smoking of marijuana on the premises, especially where the prohibition on smoking is clearly spelled out in the Lease Agreement.  Even without a lease agreement provision, landlords should be able to prohibit smoking marijuana because it is illegal under federal law and not protected by fair housing laws. 

There is no law requiring a landlord to allow smoking marijuana in a rental unit.  Accordingly, lease agreement provisions precluding marijuana smoking are enforceable under general contract principles.  Medical marijuana laws instead address a narrower issue – whether people who use marijuana in compliance with state law are committing a crime.  Before medical marijuana laws It was legal for landlords to prohibit on-premises smoking of virtually any type of substance and that remains the case even after the enactment of such laws.

Landlords should clearly and conspicuously spell out the prohibition on marijuana smoking in the lease agreement.  Ideally, the lease should obtain a clause specifically prohibiting smoking on the premises, including the smoking of marijuana.  Many landlords also include language that prohibits “illegal activity” on the premises.  Because medical marijuana is illegal under federal law, it should arguably be covered by a lease’s “illegal activity” clause.  Violating the clause violates the lease, and entitles the landlord to recover any reasonable penalties provided by the contract.  The landlord would also be permitted to use the violation as a basis for an eviction proceeding against the tenant.  

What if the lease does not contain a no-smoking or illegal activity clause?  The answer is less clear.  Even without such a provision, landlords can argue that smoking marijuana is per se illegal under federal law, and therefore can be used to support an eviction.  From a practical standpoint, however, most courts would not require a tenant to move out simply because he or she smokes marijuana in violation of federal law, unless the violation was so severe as to constitute a nuisance.      

Tenants have invoked fair-housing laws prohibiting discrimination to support their position that medical marijuana smoking should be allowed in their rental unit.  However, challenges to a no smoking policy under anti-discrimination laws have been met with skepticism in those judicial districts that have had been called upon to resolve the issue.  Although state and federal laws prohibit discrimination on the basis of certain attributes (such as age and national origin), being a marijuana smoker does not fall within any classification protected by those laws. 

In short, there presently are no laws requiring a landlord to permit marijuana smoking in a rental unit, meaning landlords are contractually entitled to exclude such activity by including a no smoking clause in the lease agreement.  Since this is an evolving field of law, landlords should keep apprised of all future developments in this legal field, and should ensure that their leases explicitly prohibit smoking of any kind if they do not want smokers as tenants. 

Please contact Lynx Legal with any questions regarding the above.  We can be reached at 888-441-2355 or [email protected].  Our experienced professionals are standing by to answer any inquiries, and to assist you in handling all of your eviction needs.