Recreational marijuana use has been legal in Colorado since 2012, and the resultant influx of “420” tourists has been a boon to the state’s economy.
As of 2016, Oregon, Washington, Alaska, and the District of Columbia have also changed marijuana laws and have legalized recreational pot.
In many ways, Colorado is a test case for landlord/tenant relations in a marijuana-friendly environment. The marijuana laws encourage Coloradans to partake at home rather than in public. But the same laws authorize landlords to prohibit marijuana-related activities on their premises.
Colorado’s Marijuana Laws
Colorado voters passed Amendment 64 to the state constitution on November 6, 2012. Enacted as Article 18, section 16 of the state constitution, the Colorado marijuana law states in part:
- Growing: Colorado residents can legally grow up to six marijuana plants. Only three of these can be mature at a given time.
- Possession: Residents are allowed to possess up to an ounce of marijuana, and they can give it to anyone over the age of 21, provided no money is exchanged. They can sell the marijuana they grow to a retail store, provided they have a license.
- Public Consumption: Marijuana may not be consumed publicly or in a way that endangers others.
- Rentals: Property owners may allow their properties to be used for marijuana consumption, storage, cultivation, and sale. They are also specifically authorized by the law to prohibit or regulate these activities on their properties, if they wish.
The provisions of section 16 do not change the fact that possession, consumption, and cultivation of marijuana remains a federal crime. The U.S. Department of Justice has indicated that it will not intervene in states that have enacted laws permitting and regulating marijuana use.
Anyone who moves to Colorado to take advantage of the new laws wants to be able to smoke weed at home. Catering to their wishes makes your property more desirable and easier to rent, and if you’re a landlord, that may be all you want to know.
However, you should also consider the importance of keeping repairs to a minimum and maintaining your units in top shape so they can command the highest rent. Balancing these interests takes a more nuanced approach than outright prohibition or naive laxity.
Limiting the amount of smoke inside a rental unit makes sense. Smoke creates odors and leaves deposits on the walls that are difficult to remove. Some tenants, however, want to smoke marijuana at home — the law makes it illegal to do so in public. Instead of a blanket prohibition, a landlord might allow smoking on the porch or in the yard.
A number of factors make home cultivation unattractive to landlords. Indoor growing can create mold and other health issues, and when tenants move out, the landlord usually gets stuck with the cleanup. Growers have been known to punch holes in walls for ventilation and to paint windows black. Moreover, indoor growing is an energy-intensive activity, and inflated electricity bills are a concern to any landlord who pays utilities. To top it off, the feds can seize any real property used as an unlicensed commercial grow house.
These drawbacks understandably make many landlords reluctant to allow growing. But they create opportunities for others who are willing to raise rents in exchange for growing permissions. Entrepreneurial landlords can help protect their premises by requiring cultivation to be conducted in a specific part of the dwelling and no other. If the unit has a well-insulated basement or garage, that would probably be the best place to allow growing. An unfinished attic can also easily be converted into a grow space.
Spell Things Out in the Lease
Whatever you choose to do, the conditions regulating marijuana-related activities must be spelled out in the lease. Here are some sample clauses for landlords in states that permit recreational marijuana, as suggested by the National Association of Realtors:
- “The use of tobacco and cannabis in accordance with state law is allowed on the Premises. Prior written consent of the Landlord is required before medical cannabis may be grown on the Premises.”
- “This is a nonsmoking residence. No smoking, including medical marijuana, inside the home or on the Premise is permitted. However, consuming medical marijuana with a vaporizer or in cannabis edibles, tonics, or concentrates is permitted.”
- “No recreational or medical marijuana may be grown or consumed on the Premises by the Tenant(s) or guest(s) without the prior written consent of the Landlord.”
If conditions aren’t specified in the lease, it’s difficult to impose restrictions after the fact.
Calling the police is not the option it used to be since the changes in the marijuana laws took effect.
It’s good to remember that, when it comes to pot cultivation and consumption in Colorado and other states, the lines are blurred, and the police probably won’t respond.
A landlord’s best protection against property damage and possible legal problems is a clearly worded lease.