The 411 on the 420—Can Tenants Smoke Marijuana in Your Rental?

Written on August 8, 2017 by

With laws on cannabis changing so quickly, it’s a good time for landlords to acknowledge the culture shift, and how it impacts smoking and use in their rentals.

Regulatory Matters

As of July, 2017, recreational marijuana was legal in eight states: California, Oregon, Nevada, Washington, Colorado, Maine, Massachusetts, and Alaska.

Twenty-seven more states have medical marijuana statutes on the books, and the list of cannabis-friendly states is likely to keep growing. During the most recent election cycle, eight states adopted cannabis legislation.

No recreational marijuana law requires landlords to allow pot smoking in rental properties. In fact, Colorado’s Amendment 64, California’s Proposition 64 and Alaska’s  statute AS 17.38.120(d) all specifically allow a landlord to forbid it.

Chapter 475B of the Oregon revised statutes doesn’t mention the landlord’s right to prohibit marijuana smoking, but it does reaffirm the landlord’s right to prohibit smoking in general. Laws in Massachusetts and D.C., allow tenants to smoke pot unless landlords specifically prohibit it in a lease clause.


Landlords Have the Final Say

Simply put, smoking substances like cigarettes or marijuana inside a home will cause excessive damage to the walls, carpets, almost everything else. As such, a landlord can prohibit smoking in and around the property.

Just because marijuana is legal doesn’t mean it’s permitted in a rental property.

Because of the inherent property damage caused by smoke, renters can smoke marijuana in a rental only if the landlord says they can, unless they don’t mind paying for new carpet and new paint.

However, landlords who don’t allow pot still need to be explicit. Leaving the question open, or unmentioned in the lease, can put a landlord at a disadvantage.

Here are three reasons why landlords need to specify if pot is allowed:

  1. No Smoking in Public
    No state allows marijuana smoking in public, so the next best place to smoke is at home. If it’s legal to use cannabis, tenants can regard efforts to make them stop as interference with quiet enjoyment. That is, of course, unless they agree not to smoke before moving in.
  2. Not a Priority
    Cannabis legalization changes law enforcement priorities. In a dispute over marijuana use, police cannot—or are at least unlikely to—get involved unless someone is breaking another law. This is a sea change from the days when possession was a crime. In the absence of a prohibition in the lease, you cannot use cannabis usage as grounds for legal action or eviction.
  3. Allowed by Default
    Most laws specifically allow consumption of marijuana products in a rental property. A landlord can prohibit it only in a lease clause that regulates smoking or prohibits illegal activity (as a Class I narcotic, marijuana is illegal at the federal level).

You Can Ban Marijuana, but Keep Two Things in Mind

  1. Allowing marijuana use—like allowing pets or tobacco—increases the pool of possible renters.
    States with cannabis laws have a growing pot-centered tourist and transient population, Marijuana is big business. Sales of marijuana in the United States totaled $2.7 billion in 2015, and that’s before California legalized it. Some hotels and bed and breakfasts in Colorado, Oregon, and Washington make a selling point of being pot-friendly, and it pays off.
  2. Rejecting a prospective renter based solely on cannabis use could be discriminatory.
    People with medical marijuana prescriptions have persistent medical conditions. The Fair Housing Act might protect them since it prohibits discrimination based on disability. Marijuana is still illegal under federal law, though, so it’s not clear how a court would rule, but who wants to test it?

It’s Essential to Put It in the Lease

A landlord is in a stronger position when they put the rules in writing. The lease doesn’t have to ban marijuana use outright, although that’s always an option. It could require tenants to get written permission from the landlord before smoking cannabis on the premises. It could also allow use only in certain locations on the premises and specify where those are.

Two Ways to Incorporate a Marijuana Prohibition

  1. Ban Smoking Completely
    Because of the problems associated with secondhand smoke and the risk of fire, it’s common to include a lease clause that prohibits smoking. The clause can mention both tobacco and marijuana.
  2. Ban Illegal Activity
    You can also mention cannabis consumption in a clause that prohibits any activities on the premises that violate federal laws. That’s taking a harder line, but it dispels any uncertainty about pot’s legal status in the rental. This is the best option for landlords who choose to allow tobacco use in rental properties.

Consider a Pot Addendum

Some landlords attach an addendum to the lease. This is typically a separate page that the renter initials or signs. If the landlord chooses to ban marijuana use, the addendum states the reasons for the ban and the penalties for violating it.

If the landlord opts for a partial ban, the addendum outlines the conditions under which renters can use cannabis. Perhaps they can consume edibles, but not smoke or vape. If so, the addendum states that.

Be Aware of Disabilities

If a renter has a documented disability which requires the use of medical marijuana, it would be unwise to prohibit it’s use. However, since there are multiple ways to consume medical marijuana (including synthetic pills), a landlord could still prohibit “smoking” and anything else that damages the property.

Familiarize Yourself with the Pot Laws in Your State

As cannabis becomes legal in state after state, the stigma associated with pot use is quickly disappearing. Some people use it as a medicine and others as a social tool, like alcohol. You may not like marijuana or condone its use. But if you’re in a pot-friendly state, there are probably many people who do.

If you want to prohibit marijuana, do it in a way that conforms to state laws. To do that, it’s a good idea to get a copy of the relevant laws and read them.

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11 CommentsLeave a Comment

  • Sally

    Good article. I have decided to not allow. I hate the smoke and don’t like the possibility of fire.

  • Jose

    Good article but I must correct you on just one thing. Marijuana does not have the same affect on apartment rugs and walls as tobacco. Remember, that the tobacco we smoke is minipulated by man and loaded with toxic chemicals, marijuana is not. Therefore, the affects are different.

    You can go into most homes of people who smoke marijuana and never even know that they smoke there. Unless, it was just smoked within the last couple of hours.

    I’m just not convinced that we can all just randomly assume that just because something can be smoked like cigarettes.. that it is just like cigarettes.

    • TD

      That is incorrect, you do smell it, it’s in the carpets, it’s in the curtains or your fabric blinds. Also, if you do not change your air filter on a regular basis, it is in your air filter too.

    • Bernard

      YOU don’t smell it because you are accustomed to the smell. Everyone else can smell it.

      I smoke cigars in my living room on occasion and I can’t smell anything after I am done but my friends and family can.

      I had a roommate who smoked pot every day in the living room and the smell was always f—ing horrible and everywhere. I started developing a cough after living with him for a few weeks….and I never had a cough from smoking cigars albeit I’d only smoke one every couple weeks or once a week.

      You are the typical annoying pothead. Pot is actually worse for your lungs then tobacco….it has more tar. You guys are as bad as vegans. Seriously.

      You want to smoke then smoke but be honest about the negative effects.

      • Mazz

        So you would have a bunch of drunk people hooting and hollarring all nite. You are incorrect, there is not tar in marijuana. If you don’t know what you are talking about stop preaching.

    • Mickey

      I disagree completely. Just had a tenant move out earlier this month and the apartment reeks of smoke, and yes, I know what it was they smoked, it was not cigarettes. I left the windows open for 3 days, still reeked, my dad said to put out coffee grains and my cleaning lady said to boil cinnamon, still reeked. I am now repainting the whole unit. I really didn’t want to use the security money and wasted many rental days trying to get rid of the smell by other means, yet here we are. I have a waiting list of families wanting to move into the place so if the apartment had been rentable day 1 I would not be posting this on the 5th of the month.

    • DomT

      It smells. Some people get used to it, but it literally leaves a smell on the carpets and curtains.

    • Daphne

      Not true. Our new tenants where Vaping thc pen within 3 hours of movin. There was clear violations of 3 clauses of lease . The whole place stinks and is smell is coming into my upstairs unit. 1 week later it still smells. In carpet , walls. I nicely told them outside by the end of yard but they continue inside! Will start fining daily. Worst yet they have 8 month old! Not legal in our state and I was more then nice by allowing pot smoking in yard of a no smoking unit!

  • Tiffany

    So I live in Oregon and I’ve been living in my rental for 7 1/2 yrs. My roof was leaking in 4 places. Really bad in the kitchen. My 82 yr old landlord decided to come stay in my house for 2 weeks, without asking, and put a bunch of lumber paper on my roof because she has no money to replace the roof. I let her sleep in my oldest son’s room because he was out of town. I know she snooped through my house while I was at work. So a week later she calls me and demands that I write up a thing saying that I will not have marijuana on the premises and have everyone in the house sign it including my son’s girlfriend (who doesn’t smoke) and my 15 yr old son (who also doesn’t smoke) Is this legal?

  • Alise

    Question for the legal community:
    “Why is it a person has to be at least 20ft from the outside of a business before they “light up” out of respect for those that don’t smoke, but it’s legal to smoke (medical or not) marijuana inside an apartment with no consideration for those that do not smoke? And why is it acceptable for businesses to declare their business a “no smoking zone”, but it’s discriminatory to make an apartment “smoke free?” I mean, it’s ok to get cancer from 2nd hand smoke at home, but not where you work? Please explain the rationale behind this!

  • Jeremy

    I am curious how these ever changing laws affect multi family dwellings. For instance, I live in a house where the landlord rents the basement as a separate unit. the tenants smoke pot and it permeates in to my living space. does that go against Colorado’s clean indoor air act, and can I do anything about it? My landlord refuses to as she sees it as their right to smoke it. But is it their right to force others to smell it?

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