Residential Leases in Post-Legal Marijuana Era

by George Georgountzos

Landlords who lease residential units face new challenges in dealing with legalized marijuana use. Legal use of medicinal marijuana has been around for a while and Massachusetts courts have addressed issues about offering reasonable accommodations for individuals who are prescribed marijuana under a doctor’s care. Now that Massachusetts has legalized recreational use of marijuana, landlords would be best served by addressing the new reality in their leases to minimize nuisance claims and limit the potential harm that could come from tenants growing cannabis in their units.

In 2016, Massachusetts voters passed a referendum that allows individuals 21 or older to possess up to one ounce of marijuana for personal use. Individuals may also grow up to six plants, with no more than 12 per residence. As of July 1 of this year, local jurisdictions may grant licenses to marijuana dispensaries, or so-called “pot shops,” offering marijuana for sale to the general public, however, individuals are still prohibited from selling marijuana. Possession of marijuana is a crime under Federal Law placing landlords (and tenants) in an unchartered and conflicting legal quandary concerning confiscation and criminal penalties.

With respect to residential leases, Massachusetts law has always allowed restrictions on smoking, though enforcement was sometimes difficult, and courts are wary to evict tenants based solely on violations of non-smoking clauses. With marijuana, the odor is more pronounced and usually creates a nuisance to neighbors and other tenants who object to the smell of second-hand marijuana smoke. Moreover, the cultivation of marijuana plants requires hot heat lamps that syphon energy and create possible fire hazards.

Leases should address these concerns and provide tenants with clear expectations from the start of their tenancies. Blanket prohibition of smoking within leased premises is a good start. Prohibiting tobacco smoking has long been upheld in leases and this prohibition should carry over to cannabis use, though landlords have had to make reasonable accommodations to individuals who are prescribed marijuana for medical purposes. Nuisance clauses in residential leases should be reviewed to ensure that they encompass the likely complaints neighbors may have concerning second-hand marijuana smoke. Leases may also include clauses banning the cultivation of marijuana inside units where the strain on utilities and resulting heat from lamps could pose an unreasonable risk of overburdening the electrical system or cause a fire. Restrictions on vaping, a means of ingesting marijuana by inhaling fumes that are not burned, should be considered as well because there is evidence that vaping can trigger fire alarms. Finally, language in leases prohibiting illegal activity should be reviewed to ensure that tenants can be evicted if they sell marijuana within their units. Landlords should also reach out to their insurance carriers and mortgage lenders to determine whether they have any requirements concerning marijuana.

The legalization of marijuana use will undoubtedly spawn litigation in a number of areas, including landlord-tenant matters. Updating leases in anticipation of these conflicts is important to protect landlords from complaints and damages that may be foreseeable in light of this new reality.