Marijuana and Your Rental

Krista Reuther:

Hello, hello. So excited to be here with you guys today. We are here to talk about marijuana and your rental. Super excited for this talk, largely because you guys requested it so often that we really just needed to dive in and try and cover it as comprehensively as possible for you. With that in mind, we are approaching this from an educational standpoint. I am not going to sit here and try and convince you that you need to welcome new tenants to your rental with a bong, right?

I’m not going to tell you that you need to allow people to smoke inside your rental, but I am going to break down what the current landscape of marijuana looks like, how that could impact your rental, ways that this might pop up, whether it’s an accommodation request or otherwise some kind of legal use that you might have to get into, along with answering some frequently asked questions at the end of the webinar. Then of course, we’ll dive into your questions and try and knock out as many as we can. So I will ask from you that we keep this kind and non-contentious, right? If you disagree with the point or if you have very strong charged opinions, I love that for you, we can disagree and still do so kindly and respectfully in the chat.

Okay. What are you going to learn today? I hope is that you’ll learn a ton. But specifically, I know that you will walk away understanding how the legality of cannabis impacts you as a landlord, along with your business. You’ll also have some tools in your back pocket to screen for marijuana users as you see fit. And I will give you a game plan for what to do if you think your tenant is smoking marijuana and they should not be in your rental. Let’s go ahead and start with where we are currently, which is the current marijuana landscape in the United States.

Before we jump in, I do want to make sure that you understand the very basics when we’re talking about marijuana, because there are a lot of different opinions and I’m just going to get down to the nitty gritty pretty quickly here. So according to the United States Drug Enforcement Agency or the DEA, marijuana is a Schedule 1 drug on a federal level. Schedule 1 substances are defined as drugs with no currently accepted medical use and a high potential for abuse. For context, hydrocodone, oxycodone, cocaine, and methamphetamine, along with fentanyl, are all classified as Schedule 2 drugs, making them easier to research than cannabis. If you are someone who has personal familiarity with cannabis, that might leave you scratching your head, because we know that those other substances, like fentanyl, are particularly dangerous and deadly for people, but they are classed at a lower level on a federal stage. Marijuana was classified as a Schedule 1 drug in 1970.

It has stayed that way. However, many scientists, along with marijuana users, are making the case for it to be reclassified, because there are medical uses for marijuana, but they haven’t been as well studied. For example, in states where it’s legal, there are prescriptions that go out for people who are undergoing chemotherapy to use medical marijuana to help with nausea from their treatment and pain. Additionally, on the mental health side of things, people with PTSD could be prescribed marijuana to help soothe those symptoms, along with not being able to sleep, not being able to eat, etc. So we’ve seen some use cases for marijuana in a medical setting.

They are just not currently accepted on a federal stage. However, last year, Rachel Levine, who is the Assistant Secretary for Health at the U.S. Department of Health and Human Services, submitted a reclassification recommendation to the DEA. She recommended that marijuana be reclassed as a Schedule 3 drug, which would put it in the same category as Tylenol with Coding. With that in mind, currently, 38 states, 3 territories, and DC allow medical marijuana. You can see that in this map over yonder, right?

All of the yellow. That means just medical. 24 states, 2 territories, and DC allow recreational marijuana. If you’re ever confused about which came first, this is really not a chicken versus the egg situation. 97% of the time, it’s going to be medical marijuana came first. In fact, I don’t know of any use cases, but I wanted to throw myself that 3% just in case there’s something that popped up where recreational was first. But by and large, it is medical first, and then once medical passes down the line, recreational marijuana is legalized as well.

That’s not always the case. As you can see, some 14 states have not jumped on board after allowing medical marijuana, but that is typically what we see. And this data comes to us from the National Conference of State Legislatures.

So it is good and accurate and up to date. Let’s jump in to a quick poll. Do you have a rental in a state where any form of marijuana is legal? Yes, I’m not sure. No.

Gonna let this trickle in and sip on some tea. Right. Ooh. Got a pretty interesting spread here in terms of your votes so far. I’m going to go ahead and let that play out for 30 more seconds. And then we will show the results and kind of get into a little bit more.

Even if you’re not sure or your rentals are not currently somewhere that allows cannabis, there’s going to be information in here for you. So very much appreciate you jumping on even though you’re like, this might not apply to me yet. Okay. Go ahead and share these results. So 74% of you have a rental in a state where some form of marijuana is legal. 15% of you said no, with 11% of you not being exactly sure, which is totally fine.

Good news. I will send out this deck as I mentioned and you can reference that map and see where your rentals fall. Just so that you can understand which pieces of information apply best to your unique situation.

Okay. So when it comes to marijuana, the reason I think it’s so valuable for landlords who have rentals in states where it’s not currently legalized to have a greater understanding of the landscape, it really comes down to how popular marijuana is and how that it continues to increase year over year. So let’s look at some stats. As of February 2024 Gallup Polls report that 17% of Americans have smoked marijuana.

That is a higher figure than what we’ve seen before. 50% have tried marijuana, excuse me, in some form. And 70% think the use of marijuana should be legal.

As you can see with this graph, that is the highest positivity rating that we’ve seen for marijuana legalization since this polling started, right? So that’s why I really want you all to understand what this could mean for your business, what kind of language you should have in your lease, all the good things that we’re going to go over here just shortly. Especially because there is legislation already in play being discussed across, you know, all of the different steps.

I want you to know about it. So first let’s start off with the Moor Act or the Marijuana Opportunity Reinvestment and Expungement Act. This would legalize weed at the federal level and create a framework for consistent regulation across the nation. Per routers, the Moor Act aims for full federal legislation through de-scheduling with a particular focus on equity provisions, including expungement for certain cannabis offenses at a community reinvestment program. The Moor Act was introduced last September and it has not yet passed through committee, so still very early days.

Pim. There is also the States Reform Act of 2023 and the Strengthening the Tenth Amendment through Entrusting States, or States Act. This would defer a lot of the enforcement of cannabis regulation to the states. It would treat it more like alcohol is treated in the United States. However, both of these bills would remove cannabis from the controlled substances act entirely and then task the Food and Drug Administration with the regulation of its products.

Again, none of these things are law currently, but they have been proposed and in conjunction with the recommendation from the scientists I mentioned earlier. It’s important for you to understand what’s going on and what you can have in your lease so you feel prepared if, let’s say, sometime this year it’s better early decriminalized, right? I can’t promise anything.

I don’t have a crystal ball, but it is something that’s in the ballpark. In terms of marijuana in your rentals, we’re going to talk about how things sit currently and I will interject with what could change as we go through if things get legalized. Here we have someone enjoying a little edible, right? There are multiple ways to consume marijuana if you are not privy. We’re going to talk a lot about smoking. We’re also going to mention some of these other forms because it’s important to keep in mind that they are not all created equal and they will not all impact your rental equally.

First and foremost, easiest one to get out of the way. If you are a federal housing provider, you cannot allow marijuana, period. According to the HUD exchange, which is a resource if you’re looking for information from HUD or the Department of Housing and Urban Development, section 8 landlords or landlords who participate in the Housing Choice Boucher Program cannot allow marijuana, even as a reasonable accommodation, because it is federally illegal.

Makes sense, right? They are providing federal housing. This is illegal on a federal level. You do not have the discretion to admit users of marijuana, even medical marijuana, into your program.

So it is just a no, a process of word. If you are a public housing provider and you get funding from the government, if a tenant comes to you and asks for this accommodation, be kind, be courteous, and let them know, unfortunately, your public housing agency does not make reasonable accommodations, even for medical marijuana. Where it starts to get a little stickier, as I’m sure you can imagine, is with privately owned rentals. We’re going to tackle this in a couple ways. Specifically, we’re going to look at what to do if marijuana is not legalized in any form in your state and what to do if it is legalized. Okay?

So first off, if there is no form of marijuana legalized in your state, technically, its use is going to fall into the illegal activity portion of your lease. That language is pretty standard. It will fall in there. However, you could add extra language for protection, especially if you’re concerned about it becoming legally allowable on a federal level. That way you already have something in place to say, hey, this is not something I want going on in my property. If some form of marijuana is legal in your property, excuse me, if some form of marijuana is legal in your state, whether that’s medical or medical and recreational, you can add specific language to your lease to let your tenants know the bounds of what they can do or not do regarding cannabis. Specifically, smoking in your property. I have some examples of that lease language that I’m going to share with you in just a moment.

But first, let’s get into another little poll. I’m curious, do you already have specific verbiage around marijuana in your lease agreement? Yes, no, maybe so. Let’s see. I’ll give you 20 more seconds. All right. Very interesting.

I don’t want to spoil it yet because you can’t see the results, but it’s pretty interesting. I’m a big believer, as is the rest of the TurboTenant team, in making your lease as robust as possible and trying to account for all situations within your lease as much as you can. Not only does that give you greater security as a landlord, but also it sets proper expectations with your tenant from the get-go. All right. Let’s take a look at this together. So we’re about split 1-3 to 2-3, where 2-3 of us do not have specific verbiage regarding marijuana in the lease and 1-3 of us do. If you have something that you’re really excited about in your lease or some way that you are just jazzed, that you framed it, please feel free to share in the chat. I am not looking at the chat currently because I cannot multitask in that way, but feel free to share with your peers. And again, if you have any questions, pop them into the Q &A.

For now, we will carry on. Let’s say, you know, you’re in that 2-3rds group, you’re like, well, shoot, Krista, I don’t have any language regarding cannabis in my lease, and that’s making me pretty nervous. There are a couple of different ways that you can go about making changes. If you currently have a vacancy, this is very easy. Update your lease with some of the example language that I have here after you run up by your lawyers, because I am not a lawyer.

That is simple, easy, and you’re starting with a clean slate with someone new. Is, however, you have an active lease right now, and you’re saying, oh shoot, I really want to make sure I have some kind of language to protect myself and set expectations about cannabis usage. You can do that through a lease addendum. We make it really easy to update your lease here at TurboTenet. If you’re a premium member, you can do this with no additional cost because it’s all baked in.

If you are not a premium member, that’s okay. You can do it ad hoc, totally fine. So in order to get this done and make a lease addendum, you’re going to sign into your TurboTenet account. If you haven’t entered your lease details and tenant information, you will be prompted to do so.

And when you have this deck, you can actually click these links for more information to help you out. I’m going to have you navigate to the Forms tab, start the addendum, and select the lease for which you want to create the addendum. Click Continue. You’ll complete a short form, put in your information, and then click Review in E-Side. Please make sure that you read the preview. As a professional writer, I would be embarrassed to tell you how often I make typos, but that’s why we review.

That’s why we take another look, make sure everything’s good before we send it out, right? Once everything is looking peachy keen, you’re going to click Finalize and E-Sign to set up E-Signatures. Once those are set up, you click Send for Signature. We will do the heavy lifting and send it out to your tenants so that they can sign it. Something to note with lease addendums that always comes up, usually people say, Christa, what do I do if my tenant won’t sign it? Unfortunately, you cannot force someone.

I say unfortunately. You can’t force someone to sign an addendum. They’ve already agreed to your lease. By and large, most tenants want to be helpful and just sign it and be like, okay, we’re all good, but if they’re like, no, I’m not going to sign this, you cannot force them. You cannot penalize them. For example, you wouldn’t be able to be like, hey Christa, sign this. If I said no, you could not then come back and be like, well, then I’m evicting you. That would be really inappropriate on a lot of levels. So just bear in mind that you need to go into this with not a confrontational tone at all. You want to just go in and say, hey, I learned about this in a webinar. I want to make sure that the lease is up to date and that we have clear expectations between the two of us. Here’s the addendum.

Let me know if you have questions. By and large, people are going to sign it to keep the piece and move on. Just know that you can’t force them.

All right. If you’re not sure how to update your lease, let’s go over some example verbiage. So starting off, of course, in our framework here, I have an example from NAR or the National Association of Realtors. This is language you might use if you live in a state where cannabis is illegal in all forms. Okay. Bear in mind, please, once again, I am not a lawyer. We are not providing legal advice. I would recommend that you take this information and either run it by a lawyer or otherwise, vet it through your proper channels before putting it into your lease to make sure it’s compliant with your local laws because I do not know your local laws.

This is, however, a really good framework to get you started. You can say something like, usage of cannabis and other federally prohibited drugs are not allowed on the premises. Further, tenants and their guests may not engage in any illegal drug related activities, including but not limited to medical cannabis on or near the premises. Landlord may terminate this agreement if tenant or guests engage in such activities. If this provision is violated, tenants will be subject to charges, damages, and eviction. Tenant forfeits their security deposit if there is any evidence of cannabis use on the premises. So before we hop over to language you can use if it’s legal in your state, what I really want to point out here, there are very clear expectations.

There’s an explanation as well saying, hey, cannabis is prohibited federally. I’m not allowing this here on the premises. You cannot engage in it in any way. Here are the consequences if you choose to engage anyway. Especially that last line about forfeiting the security deposit. That can be very effective. If this was a lease I was handing to someone, I might specifically use a highlighter at that portion if you’re doing it, if you have it printed out for a review, or otherwise if you’re sending it over via a turbo tenant you can let your tenant know, hey, I really want you to pay close attention to this portion to make sure that you get your full security deposit back at the end of your lease term. That can be very compelling for people to follow the rules because they want that money back. Now let’s say you live somewhere where some form of marijuana is legalized.

Okay? There are different options for you depending on your level of comfort. Again, you get to decide what flies in your rental by and large, especially when it comes to cannabis.

So, three different options here also from NAR. If you are looking to lump this together with tobacco, you can. I would say just as they do in this first point, make sure that you specifically spell out cannabis. It is not enough to just assume that your non-smoking clause extends to cannabis, especially in a state where cannabis is legal.

So make sure you name it if it’s something that is concerning to you. In this first example, the landlord is essentially saying, hey, you can smoke tobacco and you can smoke cannabis in accordance with state law. Okay? You have to have prior written consent though before you try and grow on the premises.

We’ll touch on that a little bit later too. Alternatively, you could say, hey, this is a non-smoking residence. There is no smoking, including medical marijuana inside the home or on the premise. However, you can consume marijuana with a vaporizer or an edibles, tonics, etc. This third option is saying, hey, absolutely no marijuana at all. No recreational, no medical.

It cannot be grown or consumed here without prior written consent. So take what works, leave the rest, but you definitely have some options. If you’re looking for another example, something that might feel even more familiar to you, I have just an absolutely wonderful friend who recently signed a lease and shared the actual language that she was given. Okay? So once again, this one I won’t read all the way through to you, if only because it’s a bit wordier and I don’t want you to fall asleep. But what it’s doing really well, it’s once again explaining, hey, this isn’t a dendum, it’s attached to the lease. Make sure that you understand under federal law, this is still considered a controlled substance, a schedule one, this is why we’re not allowing any part of it. We are not required to accommodate it, here’s why. I really like this line though here, the disabled tenants who are registered medical marijuana users should not feel discouraged to request reasonable accommodations if the need arises. This is very important so that you do not get in trouble with the Fair Housing Act in HUD, okay? So you don’t want to just break it, say, never allowed and don’t try and don’t ask. That would be very discouraging and there are genuine use cases for medical marijuana usage.

However, you also want to make it very clear what is allowed, what isn’t allowed, and the process that someone could go is they need to request an accommodation. Once again, do not feel like you have to zoom in and try and scroll this down really quickly. We will be sending out this text that you can take a look directly, okay? All right.

So, Marijuana in your tenants is the next section of this chat. Let me just go ahead and pop open the Q &A here. Okay. Some great questions.

So first, is vape as damaging as smoke? Lanoa? Lanoa? Excuse me. No, it is not. So the reason for this, vapes are, well, okay, half step back. We’re talking about damaging the property, not damaging the person in viving, right? I won’t speak on the person in viving, but in terms of the risk to your property, smoking creates the greatest risk for a few different reasons. One, there’s the inherent fire risk. You know, anytime anybody is lighting something in your rental, your fire risk increases. I’ve heard that there are some landlord insurance policies that specifically say you cannot allow your tenants to light anything in your rental.

So be sure you check on that if that’s something that concerns you. But yes, smoking is more dangerous to the rental just from a fire hazard standpoint. Additionally, the odor from smoking is significant and it can permeate the walls. And if you find that it permeates the walls and you try and move in a new tenant, it could breach their habitability if they’re unable to tolerate the smell, which is entirely possible.

Some people really, really hate the smell of smoke, of marijuana smoke. Babes, on the other hand, do not have that same lingering odor. They also don’t have a fire hazard attached. So that is not as damaging as an actual smoking situation.

Great question. Um, Katari, if it states marijuana and not cannabis, do you need to change it? I’m assuming you mean your lease language?

No. They’re interchangeable terms. So as long as you have it specified in some way, whether you’re saying marijuana, cannabis, if you’re getting wacky and you’re just going to say weed, um, that is all fine. Just make sure it’s specified in some regard. Okay. Does or will TurboTenant State, specifically, have any verbiage regarding marijuana? Great question, Brian.

So because, uh, let me take a half step back. I know that we have a form in our forms pack about drug-free living. So that is something that’s available to you if you are a premium member.

I’m not as specifically familiar with each lease for each state to say what is in there. Um, I, I am happy to check on that for you though. We will check and let me just take a note of your name, Brian, and we can follow up with you. All right. That’s what I’ve got for now.

So we’re going to go ahead and keep this trade moving. One of the questions I get asked most often when I’m talking to landlords about cannabis is, should I care? And it’s a really good question. It really, it’s, it’s going to come down to a matter of opinion. Um, as I just mentioned in an earlier question, uh, typically people care most about smoking marijuana, right? They don’t want the impacts that smoking brings. It’s usually the most offensive because of its odor. It’s really easy if you are just walking by to get a whiff and it can be very off-putting to people. Um, and it can even further than that become a nuisance for neighbors or other tenants. That’s why I would recommend making sure that you at least have language addressing smoking in your lease. Now it could be that you’re fine if people smoke outside, right?

Or if they go into a designated smoking area. You should still check your local laws. For example, Colorado has a law for multifamily properties where you have to be mindful. And I don’t remember the specifics because I am not a lawyer. Um, but they, I believe, ban. Basically they’re trying to make it so that one tenant does not ruin the environment or take away from the habitability of other tenants.

So they have specific language about how you can treat that in a multifamily situation. However, when we look at other forms of marijuana usage such as edibles, topicals, vapes, tinctures, what have you, these are unlikely to even be noticeable. So I would say you do not have to care about those. Um, there’s really not a risk to your rental if someone is imbibing in edibles or in topicals or in tinctures, or in anything that doesn’t directly impact the property itself. But smoking does inevitably, right? Especially if it’s inside, I should say. If it’s outside, as long as they’re following your rules and not leaving one’s all over the place, it should be a-okay.

But that’s really up to your discretion and what you’re comfortable with. With that in mind, I am curious, do you care if your tenants use cannabis outside of smoking? So I’m saying, you know, do you care if your tenants are using edibles or tinctures or whatever?

Also, I want to know, do you care if your tenants drink alcohol in your rental? You’ll understand why in a slide, but I’m curious. Uh, okay, loving this participation. Thank you guys for engaging. It’s always good to hear from you as we’re doing these talks. Because I just sit here and I’m giving the information, but I want to make sure that you guys are here with me. So thank you very much.

Alright, five more seconds. Interesting findings, my friends. So when it comes to using cannabis outside of smoking, 36% of you say, hey, this bothers me. I don’t like it. Then when it comes to drinking alcohol in your rental, only 16% of you are bothered by that. Well, within your rights, I’m not here to tell you to think one way or the other. But I would like to explore the differences in marijuana usage versus alcohol usage for tenants and the potential impact on your rental.

So let’s dive in. Alcohol is currently pretty commonly accepted in rentals without question, right? We’ve gotten some distance from the prohibition days. People drink pretty regularly.

It’s a part of a lot of different social circles. And it’s more widely accepted by a large, not only in rentals, but just in society in general. However, dependence on alcohol can actually cause more negative impacts to your rental than marijuana dependence. After all, if you have someone who is heavily drinking on a regular basis, this can lead to disruptive behavior, damage to the property, missed rent payments, violence, especially between tenants, if it’s a multi-tenant rental, and it can even lead to death. Okay, these are not the same risk factors that someone faces if they are regularly using marijuana. When we get into it, heavy marijuana usage, it doesn’t necessarily impact your tenants’ ability to pay rent or maintain the property, right?

Think about your stereotypical stoner. They are maybe laying around. They are quiet. They are peaceful. Am I saying that everyone reacts that way?

No. But by and large, it is more of a depressant, versus alcohol can get people really charged up. I think it’s fascinating there’s a lot to discuss here. But according to Healthline, weed seems to have fewer long-term risks than alcohol. But also, there’s a huge discrepancy in the amount of research on weed compared to alcohol. One thing to consider beyond the fact that the biggest issue with heavy marijuana usage is often the second-hand smoke or increased fire risk, which can be mitigated if they’re using a different form. People have run polls to understand how Americans perceive the danger of alcohol versus marijuana.

I found this to be particularly compelling. As you can see here, and this is from people who don’t smoke or engage in marijuana, this bottom percentage, they believed alcohol was 25% more dangerous than marijuana. This is according to a study done by the American Addiction Centers. Beyond their beautiful design, I just think it’s interesting to see how this plays out, especially because, as we saw in that last poll, only 16% of landlords here in this room were bothered by alcohol usage versus 36% being bothered by marijuana usage. So with that, you could be like, okay, interesting, but I still want to have some control and I still want to make sure that I am protecting my rental by understanding who’s going to move in and what they plan to do there, whether that’s using marijuana or not.

Totally fair. Let’s get into how you can do that by talking about tenant screening. So, tenant screening doesn’t just start when somebody puts in their application, it’s actually going to start with your listing. I want you to very clearly spell out your smoking policy, including marijuana, especially if it’s in a state where marijuana is legal in some capacity. That way you can allow applicants to self-qualify.

For example, if this aligns with your views, you could say, no smoking of tobacco or cannabis permitted anywhere on the premises. Also, you can leverage your pre-screener. So here at TurboTenet, we send out a pre-screener for you anytime someone is looking to apply for your property. If you are a premium landlord, you can customize your pre-screener to ask applicants if they expect to smoke marijuana in or on the premises.

So we have a little example here. There are not federal protections for people who smoke marijuana. So you are allowed to ask this question and you are allowed to qualify people accordingly. If you say, hey, I really don’t want any marijuana used in the property, on the property, anywhere, if someone says yes to this question, you can then remove them because they no longer qualify for your rental. When it comes to denying marijuana users, like I said, if they don’t align with your criteria and you have that kind of question in place, you can just say thank you for your time. We will not be moving forward, especially if you haven’t screened them yet, then you don’t have to go down that other legal rabbit hole of the specific notice you have to give. If you are a TurboTenet landlord, we send the adverse action notice on your behalf after someone’s been screened and denied, but that’s a conversation for a different day.

Let’s say, though, that you get an application in and they say that they do smoke marijuana and you’re like, there are otherwise a great tenant, they meet my income requirements, they meet my credit score requirements, they have everything I’m looking for, you could ask them if they’re willing to switch to a less odorous method, like edibles or tinctures or what have you. That is totally within the realm, right? Like you can have a conversation with an applicant and say, hey, what are you willing to do? However, if you do that, especially if you manage more than one rental, make sure that you are doing that for all of the tenants and you’re not just specifically allowing this on a one-time basis, right?

You kind of have to think long term and say, if I’m willing to do this for this tenant, am I willing to do it for tenants moving forward? Bear that in mind. Alright. Next up are some frequently asked questions, but I want to pop into our Q &A and see what we have going on. Okay. Um… Brent, what risk do I have that the least states know smoking marijuana?

Brent, I’m going to do my best to help. I don’t have the full context for where you are and what you mean by risk in this case. But if your lease states no smoking but it doesn’t specify no cannabis and you live somewhere where cannabis is legal, that could just cause some friction where the tenant is smoking cannabis somewhere outside, let’s say. And you’re like, hey, this is a no smoking property. And they might say, hey, it’s not spelled out in the lease and you might have to have a conversation there. But again, it’s kind of hard to know without having more detail specifically. Don’t feel like you need to give me your whole lease, but it makes it a little bit tricky to answer that question because I don’t have some of the context. Laura, in New York, I’ve had three tenants grow marijuana. The place went on fire and the top floor was a complete loss.

I’m so sorry to hear that. How should it be written in the lease? No growing slash bulbs, etc. How specific do I need to be? Laura, I’m not sure offhand what the growing laws are in New York. I will say here in Colorado where we also have growing laws and people are allowed to grow by and large. What we recommend is adding language to the lease that specifies no growing marijuana without written consent.

That way they have to come and talk to you about it. And that’s pretty much as specific as you need to be. Even though like here in Colorado, I believe, let’s see if I can get this right. I believe amendment 64 says that people can grow six marijuana plants but only three can be flowering at a time. However, you don’t have to get that specific.

You can just say by and large, no growing without consent. But I’m sorry to hear that that was such a mess. That sounds terrible. Even with edibles, tinctures, etc., people can become careless about what they’re doing and that is my concern since I also live here. That’s a very fair question.

I personally think that, again, it’s going to come down to your reference and your comfort, especially if you’re sharing a unit. It looks like, sorry, I lost my train of thought briefly. However, people also become careless when they drink.

And so I’d be curious if that gives you pause as well. And also people becoming careless can be quite the specter, right? Like, is it carelessness insofar as they’re watching the TV too loud because they’re a little high? Is it carelessness like they are leaving a pan on the stove and it could burn down your house?

There’s quite a range and every individual is going to react a little bit differently. However, most people are not so careless that they become terrible tenants, at least from what I’ve heard and what I’ve seen. So again, it’s whatever is comfortable for you, especially since you live there as well. But by and large, these different options are not going to be something that negatively impacts your rental, especially not concerning, like not compared to smoking marijuana. And that’s why, actually, for your second question, Barbara, that’s why I specified in that example about smoking. Because if I, you know, sitting back from my seat, it doesn’t really matter to me if tenants are imbibing with edibles because you are likely not to know. Now, you might because you’re actually living in the rental as well, your house hacking perhaps, or I don’t know exactly what your setup is. But otherwise, if you were not present in the rental interacting on a daily basis with those tenants, you are really unlikely to know that they are using edibles or tinctures.

So you could just say use. You could always customize that question as a premium landlord to make sure it’s tailored to what you’re looking for. But that’s why I decided to specifically call out smoking because that has a greater impact and a greater potential risk for your rental than somebody just using edibles. Aaron, are edibles considered a valid replacement to medical marijuana? In other words, can I enforce my tenants who are eligible for medical marijuana to use edibles instead? So you can’t.

I want to make sure that we’re careful about this. You can’t force your tenants to change tax. I would say if you are concerned and you don’t want them smoking, you should have a conversation with them and say, hey, would you consider like edibles instead because smoking has specific risks for my property? These are the risks. This is what I’m trying to mitigate.

I could have to take money out of your security deposit in order to clean the walls or make sure that this rental is ready for someone else who is not a smoker. But with that in mind, yes, edibles can be used as a replacement for smoking. Some people don’t take them the same way in terms of like their actual impact.

So again, good to have a conversation and just ask. But you couldn’t make them pivot. You could let them know, especially if there’s language in your lease, that they are not allowed to smoke medical marijuana and that this would be a better solution for you all.

That’d be my recommendation. Jacqueline, can I deny an applicant if they have a medical card? So anytime that, well, okay, I’ll ask it back. If they come to you and they say, hey, this is an accommodation I would need, it is, you have to do your due diligence and research it.

I’m going to tell you more about that just shortly. However, you don’t have to allow someone to move in, especially if you’re in a state where no form of marijuana is legalized. They do not have, they don’t really have the grounds to move forward in the process if you are not allowing any marijuana on your property. So again, sorry for the kind of vague answer. I don’t know where you are. The marijuana laws aren’t where you are. If it’s illegal already, you’re in the clear, you can deny them. If it is legal in some form, do your due diligence, make sure that you investigate their accommodation request if they make one. Otherwise, they don’t have to move forward.

Again, we’re looking at it on a federal level and since it’s illegal federally, that gives you some more wiggle room, but you need to make sure that you investigate to do your due diligence for the Pear Housing Act. Excuse me. Alright. Okay, I’m going to take one more question from now and then we will keep moving on.

Actually, I’ll do two. These are pretty. Okay, Justine has 14 units for which are affordable units, which means they have a reduced rent amount. And we read these through the local housing authority. Some of these tenants are currently subsidized by Section 8 voucher. Would having these affordable units qualify as a federal housing complex or would every unit need to be subsidized? Ooh, you’re in Massachusetts, I see.

That is such a good question. I might hold off. As I mentioned at the top of this chat, I have the ever wonderful gene on the line. So when we get to the Q &A portion at the end of this session and I bring her on mic, I’ll see if she has more information about this. It feels a little complex for me.

I’m not sure if having some units through a local housing authority qualifies the entire complex as public housing. So good question, Justine. Let’s try and get to it here shortly. Then I’m going to answer Harry’s question really fast or he invited a comment.

I’ve approached tenants who are smoking marijuana with a position that disturbing other tenants is not allowed. Comments. I have some thoughts. Harry, we are going to actually cover this in this next section. So hold on with me and then we will go ahead and get through it. Alright, I see a couple more questions in here. I promise I’m going to try and circle back. But let’s continue on for now and then we will continue looping through. Alright, so you guys have asked some great questions. There are also a lot of questions that pop up frequently when we discuss marijuana in rentals.

So let’s knock them out first and foremost. Does my existing no smoking policy automatically include marijuana? No. I know that it’s really tempting to just have that clause in there and you’ve had it for a while and it feels like it should cover you. I will say if you are somewhere where marijuana is illegal, you’re actually going to be covered under a different clause, specifically the illicit activities clause. However, I would still recommend that you explicitly add no marijuana if that’s a concern for you just for extra protection. However, if you live somewhere where some form of marijuana is legal in your state, you need to specifically call out marijuana or cannabis directly. That way, excuse me, you avoid any confusion.

It’s right there. It’s written out and you don’t run into that situation where you’re just discussing with one of the questions where it’s like, well, it’s legal here, but I have a smoking clause, but it’s not spelled out. Don’t leave any room for confusion in your lease.

Spell things out explicitly, beef them up as much as possible to cover as many situations as possible, and you will have a smoother road with your tenant. That’s a very good question. Raw. Another frequently asked question. Can landlords refuse to allow tenants to smoke marijuana even if recreational marijuana is allowed in the state? Short answer, yes.

Again, federal law is going to supersede state law. So you are very much allowed to say this is not permitted here. We’ll get into what happens when there’s an accommodation here shortly. That’s a bit of a different situation. But with recreational marijuana, you can just say, no, this is not allowed in the premises. No smoking on premises. If you are really against it altogether, you can say absolutely no cannabis usage on premises, whatever floats your boat.

There are no specific protections for marijuana usage under the Fair Housing Act. However, if you receive an accommodation request, as I’ve been saying, do your due diligence. Tell you how in just a second.

All right. So getting into that nitty gritty of an accommodation request. Let’s say you live somewhere where medical marijuana is legal and you receive an accommodation because you have spelled out in your lease that there is no smoking or no using marijuana of any kind on premises.

What you need to do. Well, first, if you have a no smoking clause that does not specify marijuana, your tenant may highlight that they have a medical marijuana license related to the disability and they’d like to be allowed to smoke marijuana on the premises. If you have a clause that says no marijuana usage at all, they may request to use marijuana in some capacity on the premises.

This is just to prepare you for what could happen. You’re still going to go through the same due diligence process, right, regardless of what they are asking you for. So according to legal templates.net, if a tenant insists on their right to use medical marijuana based on their disability, you as a laylord have the backing of the US Supreme Court to stand your ground. However, that doesn’t mean that you should just outright ban it in order to accommodate the fear housing act. You need to look for compromises. You need to document what you’re doing to make sure that you are looking into each individual request because otherwise you are going to get yourself in trouble. Okay, so potential compromises could be designating an outdoor area for smoking, or it could be that you’re saying, hey, I can’t allow smoking because there’s too much of an impact, whether that’s to other tenants or to the property.

But I can amend my no marijuana usage to allow you to imbibe in an odorless way, whether that’s an edible, a tincture of a periser, etc. So make sure that you investigate every single accommodation request. Document your investigations. That could be looking up what the impact would be if you allowed smoking, maybe research cleanup, or what would it cost to designate a smoking area on premises and put up signage and things like that. Would that be an undue burden to your business?

XYZ. Do that, keep the documentation, and then let your tenant know what the outcome is. And remember that you should be working together. This is not an area to get contentious and to just be like, no, you really want to make sure that you are looking through your proposing compromises.

You are trying to find a solution that works for both of you. But if you can’t find one, there have been court cases that support landlords in denying medical marijuana usage, even in an accommodation request. So specifically in the 2001 case of Oakland Canada Spires Cooperative versus a landlord, this was a Supreme Court case, let me just say. And the court noted that Federal Controlled Substances Act does not carve out a medical necessity exception for marijuana, even for a seriously ill patient. Therefore, forbidding the use of medical marijuana after you’ve done your due diligence, and if you can’t find a solution, is not discriminatory.

Because you’ve already gone through to try and find a compromise, and also it’s a federally banned drug on your property, whether or not it’s a medical treatment. However, we do want to encourage tenants to come and have these conversations and ask for their accommodation needs, rather than just going off and doing the behavior and falling down a rabbit hole of back and forth and notices and potential evictions down the line. So encourage these conversations. Don’t shy away. Don’t outright ban.

The next question in our lineup here relates back to one of the questions we saw earlier. Does my tenant have a legal right to grow marijuana in the rental if our state allows growing? I want you to always, always check your local laws, but the answer is likely not.

I’m going to lean on what I know from living in Denver, Colorado. The Marijuana Enforcement Division overseen by our Department of Revenue says, rental property owners have the right to ban the possession and use of marijuana products on their properties, and that includes growing. You are very well within your right to say, no, I’m not going to allow any growing. In fact, there have been court cases where people either grew lands anyway, or otherwise their grow operations got out of control, and they got so out of control that, as one of our friends mentioned in the question, the actual property was completely messed up as a result. In fact, they actually pulled in a realtor in one of these cases to discuss the impact the property value overall based on the growing operation that was inside, and they found in favor of the landlord, which then prompted a ruling where the tenant had to pay, I believe, $30,000 worth of damages because of what happened with their grow operation. So at the end of the day, this is a long way of saying, no, your tenant does not have a legal right to grow marijuana in your rental if your lease specifically says that they cannot grow marijuana in your rental, and you really need to lean on that lease. All right.

What to do if you think your current marijuana, well, if you think your current tenant is smoking marijuana. I know that this is the question that so many of you have been waiting for. I’m going to break it down as easily as possible, and we’re going to go through it.

Okay. So your first step is to gather evidence. I want you to document any evidence of marijuana use, such as lingering odor, discarded paraphernalia, or complaints from other tenants. You are most likely going to find this because of complaints from other tenants, or because maybe you were going by for an inspection, you gave them proper notice, and you noticed that there is this lingering odor. Odor is really hard to pinpoint as an evidence, as proof of wrongdoing, right? Because you can’t necessarily, with 100% accuracy, always determine where that smell came from. That’s why it’s really important to document anything that pops up.

You want to maintain detailed records of dates, times, and your observations as well as any complaints that you have received. However, and I can’t stress this enough, do not illegally add any evidence. Enter the tenants unit without their permission to conduct extra surveillance. And do not try and conduct any form of extra surveillance on top of what you’re doing to try and catch them in the act. That can very quickly spiral into harassment, and you don’t need to do that.

You can follow the book, do everything by that, make sure that you’re keeping your documentation and gathering evidence as you go. It might be frustrating because you’re like, no, there’s a problem right now, and I want to solve it right now. But to best protect yourself and your business long term, you need to go at the speed that this takes, which is, it might be a little bit where you’re gathering evidence to try and hone in on what’s going on.

Let it take the time it takes. Do not start, you know, playing Rambo and hiding in bushes outside of your tenant’s house to see if they are smoking when they’re not supposed to be. That’s going to drive you crazy. That’s going to drive them crazy.

It is a recipe for disaster. As you’re gathering your evidence, I also want you to review your lease. Re-read any sections concerning smoking.

Again, many leases have blank prohibitions, but you want to make sure that you specify that marijuana is not to be smoked. That is your main concern. You should also check on your nuisance clause. Make sure that you’re really familiar with what that says and the expectations and consequences outlined therein. And also, it doesn’t hurt to look over your general conduct clause if you have one.

So these are clauses related to maintaining the property, abiding by local laws, et cetera, depending on where you live and the legality of marijuana therein. So once you’ve gathered your evidence, you’ve reviewed your lease, then I want you to communicate with your tenant. You can send them a lease violation notice detailing the offense, including dates, times, and evidence. The lease clauses that pertain to these offenses, the lease clauses that are being violated, next steps.

So this will be informed by your state laws, but it’s likely a cure or quit situation. So you need to explain how long they have to fix the problem and what will happen if they don’t. Then, if that still doesn’t work, if there’s still bad activity going on, consider mediation. You can bring in a third party, a neutral third party, to try and find a solution and really impress upon your tenant what they need to be doing or not doing in order to stay in your rental. I recommend this because the last option is eviction. It is super costly.

It is traumatic. This is why I would really recommend that you do everything else you can before reaching this point, especially because you probably want to bring in someone who specializes in landlord-tenant laws to understand your legal options and make sure that you’re complying with local regulations. That gets costly fast.

But these are the general steps you need to take in order to investigate if you think that your tenant is smoking. So we have now hit the Q &A portion again. I know we are quick on time, but Queen Jeanne, if you are in the mix, I have some questions for you. I’m ready. Yeah. All right.

So first one is coming from my friend Justine. She has 14 units, four of which are affordable so they have a reduced rent amount and they are rented through their local public housing authority. Some of those residents are subsidized by a Section 8 voucher. Do you know if this means that the affordable units qualify her as a federal housing complex or does every unit in the building need to be subsidized to be qualified that way?

Jeanne Sanford:

That is a pretty complex and specific housing law question and I would definitely tell this person to contact HUD or their local housing authority. I would try local first. I think they would be able to answer that question for you quickly.

Krista Reuther:

Beautiful. And I agree, Justine. I’m sorry we couldn’t shake it out for you. I will say I recently called our local HUD office and I did have to leave a voicemail, but they got back to me in the same day and now I have to get back to them. It’s a whole phone tag thing, but they’re pretty approachable. There should be a line where you can ask these kind of questions and make sure that you have all the information you need to make an informed decision. Alright. How often and how do you notify your tenants about these policies? Can you share standard language?

So, Gene, I guess, well actually, you know what Gene, I can take this one. So how often and how should you share this information with your tenants? I would say if you have a vacancy and you’re bringing in a new tenant, that’s the perfect time to say, here are the policies related to marijuana usage, particularly if you live in a state where some form of it is legalized.

In terms of standard language, good news to you anonymous attendee. You will receive a copy of this deck and you can draw from the examples that I’ve laid out here, which includes some standard language that you could run in your lease. Again, I am not a lawyer. Please double check with a lawyer before you put anything into a legal contract, but this should give you a good jumping off point. If you already have an active lease and you’re wondering when you should notify tenants about the policies therein that already exist, I would say if an issue comes up, let them know, but otherwise, if there is no issue, you don’t have to continually remind them. Just something to keep in mind. David asks, so if you have marijuana smokers in your building, you can’t accept Section 8. What do you think?

It’s a stumper. So my understanding, David, is that you cannot, as a public housing provider, as someone who’s in the Housing Choice Voucher Program, you cannot allow people in those units to smoke marijuana. I don’t know the specifics if it comes to where you have one building like Justine and some of your units are through federal housing and some of them are not.

So please do touch base with your local HUD office for more information, because I’m not sure where you are or what your state’s laws are in that realm. Let’s see. All right. Sorry for the long question here.

That’s okay, Brent. I want to give a background first and then ask you the question. I have units in the state of Indiana. It is not legal in any form for cannabis use. The police have decriminalized our not enforcing use laws. I would say from experience, recent college graduates have been educated in college that cannabis is safer than alcohol use. Because of this, most tenants under 30 do cannabis. If I see them doing it, what should I do? So I’m going to assume, Brent, that you mean like if you see them smoking, like what should you do? If you have some kind of language in your lease, I would lean on that, especially if you have specifically cannabis usage in your lease. Right? So I’m going to say, Brent, I know you said that the police are not currently enforcing these laws, but it’s still written into your lease where you could go to them and say, hey, these are my reasons why this is not allowed. What can we do to move forward? Can you use it in a different regard?

Excuse me. Can you, otherwise, like here are the different ways that would not impact your security deposit. That’s something I tend to lean on in these conversations because people are really compelled to get that money back. So you can say, hey, I want to be able to give you your full security deposit at the end of your time here. But unfortunately, if you’re smoking within the rental or smoking on the premises, this has negative impacts that can cost you in the end. So because of that, how can we find a solution where you are not smoking and you can get, you can try and get more of your security deposit back? That would be my recommendation.

Again, just having a conversation, leaning on your lease, because it does still fall under the illicit drugs category if in Indiana, no cannabis usage is permitted, even if the police are not actively enforcing that law. So that’s what I would lean on. Alright. Robert, the PowerPoint slides are going to be available online. We will also send you an email with all of this information in it. So you can click through the deck, all of my links, et cetera.

You can look at the language that I spelled out. So this will all be available to you. It also goes on our webinar page. We have an entire library of different webinars that we’ve done over the past few years. Some great information in there, so please do check it out, www.turbotenant .com. Education slash webinars. Does mediation need to be done by a certified person?

That’s a good question. I would always say lean on your laws to see if there are any requirements for bringing in a mediator on a state or local level. But by and large, no, you just want to make sure that they are a neutral party and someone who can kind of keep the peace as you discuss this. Jeanne, do you have any thoughts on certified mediators versus not?

Jeanne Sanford:

Well, it depends if your language says like, we’re going to forgo the court route, but you have to use arbitration. Then yes, you would have to use, it’s called like jams. There is, in every state, there is an arbitration that has a list of accepted mediators to pick from. So I would say generally, yes, you need to kind of go through those agencies and pick an approved. Otherwise, you know, if you just pick somebody, they could be biased, you know, too easy to pick part. So definitely go with the arbitrators that have already been accepted and approved in your state. Smart as ever.

Krista Reuther:

All right. Thank you. Okay. David asks in LA, can you deny Section 8 applicants because of current marijuana smoking tenants since Section 8 is a part of HUD? I, that feels a little complex because I don’t know what the laws are regarding rejecting Section 8 applicants in LA. Yeah, anything you would add there, Jeanne?

Jeanne Sanford:

I’m just going to go with, you know, right off the bat, it just seems like yes, you could reject them because, you know, the federal law level. But definitely check your county requirements. California is really liberal, so they may have some hoops to jump through and some added protections, things about discrimination. So I just want to be careful along those lines.

Krista Reuther:

Yeah, absolutely. And if the applicant is not the one smoking weed, but you have people who are smoking in the rental itself, again, it just adds a layer of complexity where I really recommend touching base with your local public housing authority or a landlord, tenant lawyer in your area.

Because like Jeanne said, there are a lot of different hoops out there in California. Okay. I know we’re short on time. We’re going to take a couple more questions here. Laura asked my tenant left without notice and smoked, fixing the place will cost more than his security deposit. What do I need to do in New York?

Jeanne Sanford:

You could file a small claims court action and go after him that way, but it would be a separate action and bring your proof, bring your receipts, everything.

Krista Reuther:

Yes. Also, although this might not be the answer that is going to bring the warm fuzzies, I will say if you have to make repairs, you can then, their tax deductible as long as you keep your receipts, not the same as an improvement. We’ve touched on this before, but that might be one way to try and mitigate the financial damages or fixing it up. I’m sorry that happened. Okay. Can a landlord require drug testing? What do you think, Jeanne?

Jeanne Sanford:

You know, as wild as that sounds, I do not think it is totally out of the realm of illegal. The thing is, if you’re going to do that, then you have to test every applicant.

Because you can’t discriminate and go, oh, this person looks like a smoker. I’m going to do him. But you know, you’re kind of wading into some real tricky waters there. But as a private landlord, I mean, I do believe you could do that. But like I said, keep it straight across the board and do it to everybody. Yes, will said. All right.

Krista Reuther:

Let’s see, what proof is needed for eviction? The police tells us that smell isn’t probable cause. That’s a really good question. I’m not sure, Jeanne. All right.

Jeanne Sanford:

I mean, you have to have something that you can document. I mean, smell, maybe you interview all the people and say, well, eight people said the smell was, you know, use some kind of quantifiable evidence. Just kind of your opinion is probably not enough best to, you know, stick with facts and something that you could prove. Yes.

Krista Reuther:

Well said. So build on that, I would say, you know, let’s say this is a multi-family property situation. You could maybe, like Jeanne said, ask people but send out a brief survey about whether people are smelling marijuana or not. So you have some numbers to fall back on. Again, that does get tricky though. I’m sorry. That’s pretty hard when smell is the major thing that people pick up on from smoking marijuana. Right.

Jeanne Sanford:

As it can go away, you know, so when did you smell it? You know, document that. Times, dates, number of people who agree.

Krista Reuther:

And if you get any complaints as well, that’s going to be really important because that holds some weight, especially cause it’s coming from an outside party. Yes, very good. All right. Two more questions here. Jeanne, do you know if TurboTenant State specifically says have verbiage regarding marijuana?

Jeanne Sanford:

Well, we don’t have any specific, but there are definite clauses and provisions that you could draw to like we have the no criminal activity, the nuisance. If somebody did pick a no smoking policy to add on, you know, and then that verbiage about the, you know, the quiet enjoyment, you can’t, you know, infringe on somebody’s enjoyment of the property. So all those things could be construed to be that, but your best bet is to add in a denim and some pretty specific language.

Krista Reuther:

Beautifully said. Thank you very much. Very last question. Does cooking with cannabis give off an odor that impacts the unit? That is, it’s a great question. My inclination is yes, it could, but I think it’s going to depend on the ventilation and whatever setup you have actually in your rental.

But by and large, I would not encourage people to be cooking with marijuana in a rental because there is likely going to be an odor and it could permeate the walls in the same way, especially depending on how often it’s done. Okay. All right. Well, before we sign off officially for y’all who are still left, I want you to know so much of this process gets easier when you sign up for Turpotent at premium. You will get unlimited lease addendums, unlimited e signatures. You also get access to our professional forms pack, which has drug free housing, addendum language for you.

So if you’re looking at your lease and you’re like, dang, I really wish that I had something here that I could lean back on. We have it. We’ve done the hard work for you. And if you haven’t signed up for premium yet, check out your account in the next couple hours. I have a special promo code for you in your Turbotent account.

Again, give me about an hour or so and it should be live, but you can save some money and better your business at the same time. I really appreciate all of you being here today. Jeanne, Jonathan, the whole team in the background. Thank you so much. Audience, thank you. I can’t wait to see you at the next webinar. Bye for now.