By: Aldon Bolanos
One of the newer and more difficult issues to surface recently is the tenant who is licensed to carry, consume, and even cultivate and grow medicinal marijuana. Landlords who are surprised when their property is being used as a marijuana farm are doubly surprised when they encounter difficulty in compelling the tenant to refrain from engaging what is seemingly unlawful activity. This article focuses on the state of the law and strategies for dealing with tenants who possess and cultivate marijuana lawfully under California law.
First, the law: The Compassionate Use Act of 1996 provides immunity from prosecution under California’s drug laws for anyone who possesses or cultivates marijuana with the approval of a licensed physician. However, this directly conflicts with the federal Controlled Substances Act, which makes the manufacture, distribution, or possession of marijuana a criminal offense.
How, then, does a responsible Landlord protect his property from becoming a pot farm and drug house given these seemingly conflicting laws? As with many issues, an ounce of prevention is often worth a pound of cure. The key is to include specific language in your rental or lease agreement which clearly sets forth your expectation regarding use and cultivation of this narcotic.
For example, you might state that a “material breach” of the lease agreement is grounds for eviction, and then go on to define “material breach” as “any use, consumption or cultivation of any Schedule I narcotic under the Controlled Substances Act.” In this manner, any later legal action will be based on the express agreement between yourself and your tenant, not the alleged violation of any state or federal law. This is an important distinction because it brings any future claim within the orbit of contract law and away from the potentially subjective realm of criminal law or the law of waste.
This is certainly a developing issue in California’s shifting legal and social landscape. However with the right language in any rental or lease agreement, the Landlord can properly protect both himself and his property from unwanted surprises.