The Medical Marijuana Tenant – Concerns for the Landlord

Oregon and Washington both have medical marijuana laws that protect authorized use from prosecution.  The landlords of medical marijuana patients, however, probably need to be careful about what they allow.  Renting to a medical marijuana patient carries risks that require careful control.

The easiest way to resolve medical marijuana issues is simply to inform the tenant that medical marijuana will not be allowed and make this a condition of the lease.  Washington discrimination law, however, may prohibit refusals solely for medical marijuana use (the law is unclear), and not all landlords will want to refuse anyway.

Federal Concerns

The most significant point that should be remembered when approached by a tenant who wants to use medical marijuana, or when learning that a tenant is using medical marijuana, is that federal law does not authorize medical marijuana.  The Supreme Court has ruled that the federal law can trump state laws.  The Obama administration has taken a “hands-off” position with regard to medical marijuana, but does not tolerate use of state medical marijuana laws as cover for drug trafficking or other crimes, and does not tolerate violent activity associated with medical marijuana.  Future administrations may choose to crack down on medical marijuana; on the other hand, the governors of Washington and Rhode Island have asked the FDA to reclassify marijuana to allow prescriptions.  For this reason alone, extreme caution is necessary when allowing a tenant to use medical marijuana, particularly if there is any reason to believe the tenant is growing marijuana for sale or is actively dealing.

The Card or Doctor’s Letter

In Oregon, the medical marijuana law requires a card issued by the Oregon Health Authority on an Oregon-licensed doctor’s authorization.  This card is must be renewed annually.  In Washington, the patient must obtain an authorization from their Washington-licensed regular doctor or a specialist; no card is required.  The authorization must, however, state that the medical purpose is for a terminal or debilitating condition and patient may benefit from medical marijuana.  Unlike Oregon, Washington does not allow medical marijuana authorization clinics or advertising medical marijuana authorizations as part of a doctor’s practice.  If a tenant claims to have a medical marijuana card or doctor’s authorization, the landlord probably should request a copy and confirm that it meets state requirements.

Limits on Possession

Landlords should be aware that medical marijuana allows only possession of limited amounts of marijuana.  In Oregon, the limit is six mature plants, 24 ounces of usable marijuana, and 18 seedlings or starts, and may be reduced if the patient has a prior drug conviction.  In Washington, the limit is 15 plants and a combination of marijuana or cannabis products totaling the equivalent of 24 ounces of marijuana.  Washington doubles the limit if the patient also is serving as a designated provider assisting a second patient, but the additional marijuana must be reserved for the second patient.  Washington also allows exceeding the limit if necessary for medical reasons, but the form recommended by the Washington State Medical Association does not include a space for this determination, leaving the landlord uncertain about this possibility.

If the police have reason to believe a tenant has exceeded the limit or used medical marijuana for nonmedical purposes, a search warrant may be issued in either state, and, at least in Washington, presentation of the authorization letter does not prevent the police from completing the search.

Two Things not to Do or Allow

Landlords should not handle a tenant’s medical marijuana in any way.  Only the patient may possess, touch, or use the marijuana.  The Oregon courts have ruled that helping a patient is not acceptable.

Medical marijuana may not be used in public in either Oregon or Washington.  This means that landlords should not allow tenants to use medical marijuana in common areas or areas visible to the public.

The Landlord’s Risks

The biggest risk the landlord will face in renting to a medical marijuana patient is forfeiture of the property.  If the tenant exceeds the limits of the medical marijuana law and the landlord knows about it, the landlord probably will need to take steps to terminate the tenancy in order to minimize the risk of forfeiture.  In Oregon, this would mean a 24 hour notice followed by an eviction proceeding. Washington law may allow immediate eviction proceedings for drug violations, but the landlord probably should discuss the details with a lawyer first.

Washington also allows local governments to zone medical marijuana use and adopt safety regulations.  Landlords located in zones not allowing medical marijuana should not rent to medical marijuana patients.

A final concern is that medical marijuana laws are modified by legislatures on a regular basis, and often the requirements are tightened because of apparent abuse of the programs.  Conversely, Oregon will have a marijuana decriminalization initiative on the ballot this November.  A landlord probably should keep an eye on the legislature and the initiative process.

Conclusion

A detailed list of appropriate provisions to add to the lease of a medical marijuana patient will depend on the circumstances.  The landlord who receives an application from a known or suspected patient, and who does not want to simply reject the application, probably should contact a lawyer for advice.