In November 2016 Massachusetts voted in one of the most dreaded laws by landlords in the legalization of recreational marijuana. Most landlords are concerned with what this means for the rental properties and how this is going to impact their rental businesses. The obvious fear is, now that recreational pot is legal, that tenants will now be blazing up and puffing weed inside their apartments and think there is nothing the landlord can do about it.
A Little Knowledge Can Help Blaze a Trail
So now what do we do? Apparently pot is legal and there is no stopping it from coming into our rentals. But what does the law really say about it? And what can you do about it? Well, the first thing you can do is actually read the new law to see what it says and how this affects your rentals.
Once you have read the proposed law, I think you will find it gives a Landlord some solid ground to stand on to prohibit the smoking of marijuana inside the rental property. The way the new recreational marijuana law reads, your resident can ingest marijuana by means of edibles, sprinkle it on their corn flakes or hot fudge sundae, but they are not allowed to ignite, smoke, bake, or cook it. Again, get educated on this. Do not take my word for it. Read the law. You may see something in there that I may have missed. Interpretation of this new law is open game, untested by court log, so the more you know, the more options you will have to prepare yourself for that inevitable confrontation of someone smoking weed in your rental.
The Writing is on the Wall
So lets look at this to break it down into digestible pieces. Depending on your copy of the law, you will find yourself somewhere around page 7 of 25 pages to find this information. The section you are looking for is “Section 2. Limitations”. Here you will find how the law regulates where, when and how marijuana users can, and are prohibited from exercising their legal right to grow, cultivate, consume and ignite.
There are eight (8) limitations written into the law which are as follows:
- Operating Under The Influence
- Transfer to or possession by a person under 21 years of age
- Manufacture of products
- Negligent conduct
- Relation to medical use of marijuana
- Adulteration and misbranding
So obviously, we are concerned with the topic under “Property” but with a cleverly written rental agreement from a legal professional, as landlords, we may be able to leverage the restrictions of these other categories into lease clause violations. I have not dug too deeply into how this might work yet. But there may be some written restrictions on breaking the law in, on, at, or around the premises that may open the door to a “for cause” eviction. More on that later, but lets focus in on “Property” for now.
What’s Behind Door Number #1
Under the topic of property, there are three (3) sub-categories, which in normal language refer to (1) place of residence, (2) government owned property, (3) public or private schools, or any correctional facility. I will limit my comments to the restrictions regarding place of residence.
So let’s face it. If you own you own home, what goes on within the walls of your palace is your own private business. Emphasis on “you own”. Granted, you may not want to live right next door to farmer Joe who has openly started growing pot plants in his front yard. Who knows what will happen to the property values on the street or how this will impact the neighborhood as far as crime, or unwanted traffic to Joe’s house, who again, lives right next door to you.
The silver bullet language for the landlord is written right into the law under paragraph (1) concerning residency. The law will still allow “the consumption, display, production, processing, manufacture or sale of marijuana and marijuana accessories on or in property”. I know what you’re thinking after reading this. How does this even help a landlord at all? They can still do all of these things inside my apartment!
Read on, read on! I really wish legal language were easier to read and understand, but I guess that why we have lawyers to interpret the law. The run on sentence continues to read “except that a lease agreement shall not prohibit a tenant from consuming marijuana by means other than smoking on or in property in which the tenant resides unless failing to do so would cause the landlord to violate a federal law or regulation”. So in my simple understanding of the law, your resident cannot ignite, smoke, or cook marijuana inside of an apartment they rent or lease from you.
Not so Black & White after all
Okay, so there you have it. The law reads that the resident cannot blaze up a fatty in your rental unit. But so what? What are you going to do about it? Well, you could start by becoming more educated on the subject and read the entire law instead of just sticking your head in the sand or even complaining about it without knowing all of the facts. The next thing to do is to be prepared with a strong written rental agreement that clearly lays out the rules and regulations concerning recreational marijuana in a leased rental residence.
Put it in writing. We have heard Housing Court representatives tell us over and over again at our landlord association. If it is not in writing in your written rental agreement, you cannot enforce it. So figure it out and write it down. I do not care if it is a full-blown clause woven directly into your lease, or a series of written addendum with signatures required, but for your own good; write it down.
So what are the steps you can take to make this part of your written agreements? Since 2012 when medical marijuana was voted in, we have made all of our rental units’ smoke-free buildings. So we draw the line right there. If you smoke “anything” we reserve the right not to rent to you. So making all of your properties affectively non-smoking is the first step, and put it in writing as a clause or addendum.
Next you need to use a lease that has a solid “Termination Clause”. You need a lease because you cannot do a for cause eviction for a Tenant-At-Will. For a Tenant-At-Will, you have two options. Either a 14-Day Notice for non-payment, or a 30-Day Notice to Quit but either will suffice. But you may have a difficult time evicting for violating a no smoking policy with a Tenant-At-Will rental agreement. With a “Tenant-With-A-Lease” written agreement, the courts will allow a 7-Day Notice To Quit for breach of the lease term. But here you need to be clear and have it in writing. Not only do you need to have a clearly written Termination Clause, but you will also need to have in writing all of the events that will trigger such a breach, i. e. smoking pot in, at or, around the residence they currently hold in their possession.
Again, I am not an attorney, nor do I play one on TV so please, please, please seek professional legal counsel in drafting these clauses and addendum. A good shopping list to reform your written agreements would be to suggest do the following:
To Prevent Smoking In Your Rental Units
- Make all of your rentals “Smoke Free Environments”. For help on this visit http://makesmokinghistory.org/smoke-free-environments/
- Find a capable Landlord/Tenant Law Attorney to help you draft a solid Termination Clause and all of the required clauses and addendum to add to your written rental agreements. Richard D. Vetste, Esq. of the Vetstein Law Group, P.C. has a great Blog post about Massachusetts Recreational Marijuana Law: Best Practices For Landlords and can write your clause or addendum for you.
- On lease renewals, or on all new leases and addendum, use the new written agreement and require dates and signatures on all critical clauses.
I hope this new information on the recreational marijuana laws helps to put your mind at ease that you can do something about it to keep your properties drug-free and smoke-free. I have found that since I have switched to non-smoking buildings I have much less issues with picking up cigarette butts at the property and fewer if any complaints about smoking in the hallways or common areas of the buildings. Clean-outs and make-ready on apartment turnover go much faster now too with out having to deal with removing the smell of smoke from the apartment.
Do you have any ideas on this topic you could share to help our online community? Please chime in to share a comment or review.
Belaire Property Management
Regional Property Manager
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