As more states expand access to medical and even recreational marijuana, landlords are faced with a new question: do they have to permit marijuana use in their properties? On the recreational front, the question is fairly simple; just as landlords can ban cigarette smoking, they can also ban marijuana. When it comes to medical marijuana, however, the issue is not as clear.
Now that Texas has expanded access to medical marijuana, landlords in the state must also begin grappling with this issue, and it’s important to be informed about what your rights are. If you understand what’s permitted in Texas, as well as how other states are dealing with expanded marijuana use in all of its forms, you’ll be better prepared if the issue arises at any of your properties.
Until recently, Texas law only permitted the use of medical marijuana products by those with intractable epilepsy. This is a relatively small population, almost all of whom used low THC-high CBD formulations in tincture form. Under the new law, however, Texas now permits those with Parkinson’s disease, terminal cancer, autism, and other conditions to be recommended medical marijuana. The law only permits use of these products in oral and inhaler forms; smoked products are not allowed.
For landlords, the ban on smoked marijuana products is good news, as that is the form that’s most likely to cause conflicts between tenants, and you will be well within your rights to warn or evict tenants who smoke on the property. That being said, many landlords also have default language banning all marijuana products and that raises other questions, specifically about disability law.
Landlords frequently struggle to understand what their responsibilities are in relation to disabled tenants, and this is unsurprising considering that the laws can be confusing and the most common disability-related laws generally don’t apply to rental properties. For example, the Americans with Disabilities Act (ADA) only applies to public accommodations, not to private apartment buildings. Similarly, the Fair Housing Act (FHA) generally only applies to apartments with 5 or more units. Though there are sometimes local laws that serve to supplement the FHA, at this time, Texas has no such laws that would apply to medical marijuana.
If you own a rental property with fewer than five units, you don’t have to worry about accommodation requests, but for those landlords running larger multi-family homes, the issue is more complicated. Broadly speaking, most states do not consider use of medical marijuana to be a reasonable accommodation for disability, and this is the case for several reasons. Most importantly, marijuana products are banned at the federal level. It’s a Schedule I drug, which means that it is considered to have no accepted use, and while doctors can recommend its use, they cannot actually prescribe it. Furthermore, because accommodating any kind of marijuana use would violate this law, even if it does not violate local law, it’s considered an “undue administrative burden” for landlords, and so they are not required to honor such requests.
One way that landlords can ban marijuana use of any kind, without appearing to unnecessarily target such behavior, is through a general ban on criminal activity. This is a common lease requirement, and for landlords who are concerned about tenants using marijuana in non-smoked forms, such a clause would technically resolve the issue. If you do choose to take action against a tenant for using a non-smoked form, however, beware. The law is evolving slowly, but a tenant who takes you to court over a medical marijuana eviction could have a case if it landed before the right judge – in large part because they would not be smoking the product.
Another fact that landlords should remember when addressing medical marijuana use in their properties is that evictions do not have to be on the basis of broader laws; landlords have the right to evict tenants based on their failure to follow the rules laid out in their lease. As such, if your lease does not permit any kind of drug use and a tenant repeatedly contravenes that rule, you have grounds for eviction. This is not to say that the tenant will go without causing a fuss or objecting and threatening legal action – though most are unlikely to carry through – but rather to point out that you are entirely within your rights to issue an eviction notice if a tenant breaks the rules set out in the lease.
If you do intend to evict a tenant for medical marijuana use, you can do so under one of two different premises: behavioral problems or criminal activity. Typically, a tenant evicted for behavioral problems is first asked to correct the issue and if they fail to do so, you can then issue a second notice known as a “cure or quit” notice that again asks for the tenant to change their behavior or vacate the premises. As for the criminal activity approach, you can pursue this type of eviction despite the local laws. The federal law is on your side.
If for whatever reason you do not want to make medical marijuana use an issue with your tenant, you have the final option to simply not renew their lease at the end of its term. Unfortunately, for tenants who have a term lease, it’s very difficult to pursue eviction without cause unless something occurs to require major renovations to the property. Month-to-month leases can of course be ended with an appropriate 30-day notice to move.
No one wants to evict a tenant because it can be a source of extreme conflict and the process can stretch out for months if a tenant refuses to leave – and that’s where Green Residential can help. As experienced property management professionals, we provide our clients with complete eviction services, including filing eviction notices with the courts, issuing the notice to vacate, and even attending court hearings in your stead. Contact us today to learn more about how we can support you – because with Green Residential’s property management services, you’re never alone.
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