I have previously written (<https://danielreitman.wordpress.com/2012/08/08/the-medical-marijuana-tenant-concerns-for-the-landlord-4/>) on the effect of Oregon’s medical marijuana law for landlords. Since then, Oregon has joined Washington and Colorado in legalizing the recreational use of marijuana. Some landlords (and tenants) may wonder if the new law has changed matters. As it turns out, a change in federal law is more important than the change in state law, but only for medical marijuana.
In the omnibus spending bill passed in December, Congress withdrew funding from federal actions contrary to state laws legalizing medical marijuana. Effectively, this means that landlords no longer have to worry about having their properties seized when their tenants use medical marijuana. It is probably still advisable for landlords who know their tenants use or grow medical marijuana to require compliance with the limits of the medical marijuana law (and the new recreational marijuana law) and to inspect if they suspect violations, but it is now even less likely than before that the federal government will interfere with most medical marijuana users or landlords.
Recreational use of marijuana, however, remains prohibited under federal law, and a future administration may decide to enforce federal law over state law. If so, landlords will not have much protection unless they take action as soon as a change in federal policy becomes apparent.
The Oregon recreational marijuana law specifically states that it does not affect either the Oregon medical marijuana law or the Oregon landlord-tenant laws. As a result, landlords can prohibit recreational marijuana from their rentals as easily as they can prohibit tobacco. Despite this, there are some side effects to the new law that landlords and tenants may want to pay attention to.
Homegrown marijuana is now allowed in Oregon, up to four plants, eight ounces of marijuana or 16 ounces of solid homemade marijuana products, or 72 ounces of liquid homemade marijuana products (other than extracts) at a time at any location. Unpaid delivery of one ounce of homegrown marijuana, 16 ounces of solid homemade marijuana products, or 72 ounces of liquid homemade marijuana products, are also allowed. This means that a landlord who thinks a tenant may be illegally selling marijuana, or growing more than allowed, probably cannot terminate for illegal activity unless these limits are exceeded. On the other hand, displaying homegrown marijuana or marijuana products in public view is not allowed, so a landlord who sees a plant visible from the street can take action. Of course, if the lease prohibits marijuana, the limits don’t matter.
Also, the landlord can prohibit alteration of a rental unit to accommodate plants. A tenant isn’t allowed to damage the building.
Otherwise, the primary effect of the Oregon marijuana law is to allow licensing of growers and sellers of marijuana and to legalize the growth, manufacture, distribution, and use of licensed marijuana, subject to OLCC limits on the amount that may be sold at one time.
A significant concern for landlords, notwithstanding the statement that the law should not affect landlord-tenant law, is that places where marijuana is sold, manufactured, harvested, or given in violation of the law, i.e., without a license, are declared nuisances and failure to intervene is a violation. The property may be liened to cover fines and costs. That may have the effect of forcing landlords to terminate leases when unlicensed activity is discovered.
Overall, therefore, landlords may want to consult their lawyers whether to revise their lease forms to address marijuana concerns, but they shouldn’t have too much to worry about so long as tenants stay within the bounds of the law and the federal government decides not to push the federal ban on recreational marijuana. Tenants will enjoy some protections if their lease does not prohibit marijuana, and should be able to avoid a short-notice eviction so long as they do not exceed the limits of the law.