A new case before the Massachusetts Supreme Judicial Court could bring landlords some much-needed clarity on the issue of handling tenants who are also medical marijuana patients – although property owners may not be pleased with the results.

Since the state passed its medical marijuana law in November 2012, the issue of whether and how to evict tenants who smoke pot in their apartments has become hazy. Marijuana remains illegal under federal law, and in general, if a tenant is engaging in criminal activity on the premises the landlord has clear cause to evict. But under state law, possession of small amounts of pot has been decriminalized, while certified medical marijuana patients are guaranteed the right to use the drug to treat chronic illnesses.

That leaves landlords in a quandary: Generally, they’re required to make “reasonable accommodations” for a disabled or ill tenant; for example, providing a reserved parking space close to the building. That leaves landlords unsure where they stand if a medical marijuana patient says his or her right to smoke must be accommodated.

The new case, Boston Housing Authority v. Figgs, could help clarify the issue. The plaintiff, Trenea Figgs, was the recipient of a Section 8 housing voucher. Acting on a tip from an informant, police raided her apartment and found two bags of pot, along with other drug paraphernalia and a handgun.

Following the raid, the Boston Housing Authority moved to cut off Figgs’ voucher and evict her, following federal guidelines for tenants receiving housing assistance. The guidelines state that violations of federal drug law are cause for eviction. Figgs’ attorneys argue that as a state agency, the Housing Authority should be guided by state law, under which possession of less than an ounce of pot is a civil matter, not a criminal one, and thus not sufficient for automatic eviction.

Addressing The Broader Issues

The Supreme Judicial Court took up the issue on its own initiative, transferring the case from the Housing Court specifically to address the question of whether federal law preempts the state’s marijuana laws when it comes to evicting tenants. If the court decides in favor of the housing authority, landlords will have much greater scope to evict their own pot-smoking tenants.

“Right now, landlords want to be able to control whether marijuana is on their properties,” said Jeffrey C. Turk, principal of Braintree-based Turk & Quijano and an attorney for the Greater Boston Real Estate Board (GBREB), as well as author of GBREB’s amicus brief in the case.

“In federally-subsidized and state-subsidized housing, it’s a huge issue … even low-level drug activity tends to lead to other activity [like gun violence],” said Turk. Evicting tenants who are found to possess illegal drugs can help landlords prevent other problems, and “if this is no longer an illegal activity [in Massachusetts] even though the federal law makes it illegal still, it would take away that very strong tool that we’ve used.”

A decision in favor of landlords, however, could impact potential patients who want to use the drug under the state’s new medical marijuana law, argued Matt Allen, a spokesman for the Massachusetts Patients Advocacy Alliance.

“I don’t know anyone facing eviction right now; we do have a lot of patients living in public housing who are concerned,” he said. “The patients that are part of our group are suffering from serious illnesses – cancer, multiple sclerosis, Lou Gehrig’s disease – and they really do have a need for this.”

A decision in the Figgs case is due this summer. However, even if the court does rule that marijuana possession is no longer sufficient cause for eviction, other issues will remain. Landlords can evict cigarette smokers for breaking their lease if the building is designated as non-smoking. It’s not yet clear whether marijuana smokers could be similarly evicted, or whether medical marijuana patients might have their right to smoke protected as a reasonable accommodation.

However, Allen says, such concerns may be overblown. When the new medical marijuana dispensaries are up and running, users will have a range of ingestible options, many of which carry no risk of disturbing other tenants.

“While the law did not change any private or corporate policies, we would hope landlords would understand they still have to show reasonable accommodation for patients,” he said.

Email: csullivan@thewarrengroup.com