The uproar caused by the passage of Massachusetts’s medical marijuana law last Tuesday may have some forgotten voices – residential landlords.
Across the country, medical marijuana exists in a grey area, with local law enforcement beholden to state law, while the federal government continues to prosecute marijuana growers and distributors. While there’s been a lot of ink spilled on the political and legal consequence for commercial property owners if a marijuana dispensary takes up residence in or near their property, less attention has been paid to the conundrum faced by residential landlords.
“There’s probably about six different problems you could have with this bill,” sighed Skip Schloming, executive director of the Small Property Owner’s Association, an advocacy group for landlords.
The crux of the matter is the conflict between federal drug-trafficking laws and state fair housing laws. Massachusetts fair housing law prohibits discriminating against a tenant on the basis of an applicant’s disability. The landlord is required to make “reasonable accommodation” for the tenant’s needs (for example, providing a designated parking spot). Chronic illnesses, such as cancer, are considered a form of disability, which means a landlord could potentially be blocked from evicting a tenant with a medical marijuana prescription, or even from asking on a rental application if the tenant has such a prescription.
The recently passed statute calls for the licensure of up to 35 dispensaries across the state by 2013. But it also says that medical marijuana patients without access to a dispensary can grow their own – enough for a “60 day supply.” In Washington, which first passed a medical marijuana law in 1998, state courts have defined a 60-day supply as up to 24 ounces, or 15 plants. That’s potentially enough to trip the federal drug laws’ trafficking thresholds, which rely on the weight of drugs seized and the number of plants to determine the severity of charges.
Landlord ‘Disaster’
“I suspect a qualified [Massachusetts medical marijuana] patient, who otherwise complies with safety and zoning codes in home self-cultivation … cannot be discriminated against for engaging in conduct permitted by the new state law,” said Michael D. Cutler, a Northampton attorney who advises potential dispensary owners.
One of the scariest potential consequences for landlords is civil forfeiture, which allows private property used in the commission of a felony to be seized by the government, whether a coke dealer’s Porsche, or, in an ongoing case in Tewksbury, an entire hotel (despite the fact that the hotel’s owner was not charged with participating in the drug activity).
According to legal experts, as a matter of law, civil forfeiture can apply equally to a residential landlord, if a zealous federal prosecutor chooses to make a case. Very few such cases have been brought, however, in other states where medical marijuana laws have passed.
“Given the very narrow defenses [to civil forfeiture claims], there are not a lot of property owners who are winning their cases or going forward with appeals, on either the commercial or residential sides, so there’s not a lot of case law,” said James Devine, a California defense attorney who sits on the national executive board for NORML, a nonprofit which advocated marijuana legalization.
In California, which first legalized medical marijuana in 1996, “we are seeing the DEA strongly encouraging landlords to evict, rather than go through a forfeiture process,” Devine said. “Those letters are vastly more effective than any forfeiture actions.”
That’s not the only Catch-22 embedded in the law. Patients who choose to grow their own are required to keep their plants secured in order to prevent theft. But transforming a spare bedroom or closet into a greenhouse can create all sorts of property damage risks for landlords, from faulty wiring, damp, leaks and mold – conditions landlords can’t prevent if they can’t access their own property to inspect it.
“That can buckle floors, cause mold to grow, wallpaper or paint to peel. There are fire dangers with handyman-done electrical wiring,” said Shloming. “All of this is just a disaster for a landlord.”
‘Give Us Some Time’
Those are just a few of the potential pitfalls; many other remain. The effect of the law on property insurance rates, for example, is yet to be determined. In addition, federal housing subsidies, such as Section 8 vouchers, can be revoked and the tenant evicted if the tenant or a member of their household is convicted of drug possession. It’s not yet clear what would happen if a landlord discovered a Section 8 tenant was also a medical marijuana patient – would they be able to initiate an eviction proceeding? Further, it is legal in Massachusetts to designate an entire building non-smoking, but it’s not clear if allowing a medical marijuana patient to smoke would be considered a reasonable accommodation, or cause for eviction.
Industry groups, confronted with this myriad of risks, have been left scrambling. “[We] have asked the legislature, ‘You guys have to give us some time. We need to be able to react, to draw up some rules,’” said Greg Vasil, CEO of the Greater Boston Real Estate Board, an umbrella organization of landlords, realtors and brokers. “It’s going to cause a huge problem for people.”
Many cities and towns, including Boston, are already convening meetings to consider how to rezone their districts to limit or bar dispensaries from opening – potentially shifting an even greater burden onto residential landlords.
Shloming’s group is currently circulating a petition on Beacon Hill asking that legislators amend the law so that landlords can bar tenants from cultivating or using medical marijuana on their property, as well as the right to inspect any grass-growing facilities on the premises, and to establish no-smoking policies that include medical marijuana.
Either way, “I think you’re going to see a lot of these cases coming up in from of the [Supreme Judicial Court] in a couple years,” said Vasil.
Email: csullivan@thewarrengroup.com
