What can I do about medical marijuana use (in Oregon)?

Investor · Newberg, OR · Member since 2015 · 3 posts · 1 vote

Hi everyone:

I have a no smoking clause in my lease agreements, which prohibits the use of the recreational marijuana. However, a tenant recently informed me he has a prescription for medical marijuana.

I haven't been able to determine what each of our rights are (landlord & tenant) concerning this issue. I would prefer he not smoke it on the property, but I am unsure if I can legally enforce that because of its medical use.

Can anyone shed some light on what the laws or precedents are for medical marijuana use in Oregon?

Thanks in advance.

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Linda WeygantPro Member

Investor and CPA · Arvada, CO · Member since 2015 · 2k+ posts · 3k+ votes

11y

COLORADO ANSWER:

I have the following clause in my lease which I have been assured by my legal service is valid and legal in the State of Colorado:

USE OF MARIJUANA NOTICE: The State of Colorado's Amendment 64 legalizes the

cultivation and possession and use of marijuana by persons 21 years of age or older. Despite

Amendment 64, the federal Controlled Substances Act remains in effect in the State of Colorado.

This Act categorizes marijuana as an illegal Schedule 1 substance, the possession, distribution or

manufacture of which is a criminal federal offense. Any and all use, cultivation or possession of

marijuana on the Premises, INCLUDING USE OF MEDICINAL MARIJUANA, is strictly

forbidden and shall constitute a default of this Lease. This policy applies to the Tenant or Tenants

and all visitors, guests, employees or any other person on the Premises. This is compliant with the

United States Department of Housing and Urban Development's findings that federal and state

non-discrimination laws does not require the Landlord to accommodate requests to use, possess

or cultivate medical marijuana from current or prospective tenants with disabilities.

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Account Closed
Investor · Vancouver, WA · Member since 2013 · 315 posts · 63 votes
11y
I would remind the tenant that there are other ways to take their meds besides smoking it.
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Account Closed
Investor · Central Valley, CA · Member since 2012 · 6k+ posts · 3k+ votes
11y
Originally posted by @Richard McNeal:

Hi everyone:
I have a no smoking clause in my lease agreements, which prohibits the use of the recreational marijuana. However, a tenant recently informed me he has a prescription for medical marijuana.
I haven't been able to determine what each of our rights are (landlord & tenant) concerning this issue. I would prefer he not smoke it on the property, but I am unsure if I can legally enforce that because of its medical use.
Can anyone shed some light on what the laws or precedents are for medical marijuana use in Oregon?
Thanks in advance.
I'll be interested to hear from anyone who has first hand knowledge or experience denying the smoking of medical marijuana use in a rental. Federal law still prohibits marijuana, so I'm curious if OR and CO landlords are relying on that. I have no issue with marijuana use, recreational or medical. My concern is smoking and smoke damage. If I don't want smoking of tobacco or marijuana or crack or cloves or whatever in my unit, can I just say no to smoking to those with medical marijuana prescriptions?
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Mary B.
Real Estate Investor · Lansdowne, PA · Member since 2013 · 1k+ posts · 656 votes
11y
Always a dilemma in those states that have enacted it into law. Odd though because medical marijuana isn't nature made and from what I've read some have fallen ill from some of it( whatever lab version(s)), in NJ , yet it has gotten thumbs up. The natural / nature made version noone has ever overdosed on it or died from it(marijuana alone that is - if its mixed with other drugs/alcohol those are the disruptive toxins that can kill...) however this gets a thumbs down. Peculiar indeed.
My guess the key word is 'medical' when talking about marijuana. If the State says ok and the tenant has the proper documents, can the landlord supercede the laws of the State? Interesting...
Kudos,
Mary
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Ryan Dossey
Real Estate Broker · Indianapolis, IN · Member since 2014 · 3k+ posts · 2k+ votes
11y
I would imagine that this could be taken similarly to a no pets clause with a service animal. As opposed to attempting to forbid it I would personally incentivize them not to smoke indoors. Offer a "bonus" if they don't.
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Richard C.
Bedford, NH · Member since 2012 · 2k+ posts · 1k+ votes
11y
There is what you "can" (probably) do, and what you should take the chance of doing.
In this case, I wouldn't touch this. I fully expect that states which have legalized medical marijuana will begin to apply the same standard to that substance as they do to other medications, and begin to apply their fair housing laws to people who attempt to restrict it. And that includes restricting the form in which it is consumed. A landlord had no right to have a ban on hypodermic needles and then tell a diabetic, "You can take oral insulin."
I would advise you not to be a test case.
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Greg H.Pro Member
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Broker/Flipper · Austin, TX · Member since 2013 · 4k+ posts · 4k+ votes
11y
Consulting my friend Google, it appears there is no case law but an attorney's opinion was that you can forbid the indoor use based on federal law. It was a PDF so I cant post the link.
Saying that, I do not think I would want to be the test case. I would assume a call from your tenant to a pro marijuana group would probably garner free legal fees on their side
If it were me, I would let it go. Marijuana does not do damage like nicotine from cigarettes
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Dan King
Investor · Happy Valley, OR · Member since 2015 · 23 posts · 15 votes
11y
Call the Oregon Housing Association and get a referral to one of their attorneys. A few hundred dollar investment to get legal advice may pay dividends. Their lawyers have a good handle on this issue and you may get the answer you want.
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Account Closed
Investor · Central Valley, CA · Member since 2012 · 6k+ posts · 3k+ votes
11y
Originally posted by @Greg H.:

Consulting my friend Google, it appears there is no case law but an attorney's opinion was that you can forbid the indoor use based on federal law. It was a PDF so I cant post the link.
Saying that, I do not think I would want to be the test case. I would assume a call from your tenant to a pro marijuana group would probably garner free legal fees on their side
If it were me, I would let it go. Marijuana does not do damage like nicotine from cigarettes
It's all about frequency of use. If you've ever been in a unit where there was indoor pot smoking 2-3 time per day you would not say it doesn't do damage. It's not like tobacco tar but it's smoke depositing residue on all the surfaces just the same.
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Shawn Davis
Investor · Wilsonville, OR · Member since 2014 · 59 posts · 51 votes
11y
The Oregon Rental Housing Association has a clause in their form leases (new in 2015) that is titled "Medical Marijuana" and reads "No marijuana, medical or otherwise, may be grown, stored or consumed on the premises without the prior written consent of Owner/Agent.
I just have my tenants initial this as I have a "no smoking" policy for my units. I have been advised that medical marijuana use is not considered a reasonable accommodation under the ADA and HUD has issued several memoranda stating that its use is not allowed (even by disabled tenants using it for medical purposes) but that public housing property managers are not required to evict for infractions.
So, I guess you can have it both ways. I just say "no" to all smoking, tobacco or otherwise, medical or otherwise and have been told that I can safely do so..."
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Shawn Davis
Investor · Wilsonville, OR · Member since 2014 · 59 posts · 51 votes
11y
Here is a good article by a well respected Oregon real estate attorney on the subject...
http://q-law.com/tenant-medical-marijuana-oregon-toke-landlords-line/
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Linda WeygantPro Member
Investor and CPA · Arvada, CO · Member since 2015 · 2k+ posts · 3k+ votes
11y
COLORADO ANSWER:
I have the following clause in my lease which I have been assured by my legal service is valid and legal in the State of Colorado:

USE OF MARIJUANA NOTICE: The State of Colorado's Amendment 64 legalizes the
cultivation and possession and use of marijuana by persons 21 years of age or older. Despite
Amendment 64, the federal Controlled Substances Act remains in effect in the State of Colorado.
This Act categorizes marijuana as an illegal Schedule 1 substance, the possession, distribution or
manufacture of which is a criminal federal offense. Any and all use, cultivation or possession of
marijuana on the Premises, INCLUDING USE OF MEDICINAL MARIJUANA, is strictly
forbidden and shall constitute a default of this Lease. This policy applies to the Tenant or Tenants
and all visitors, guests, employees or any other person on the Premises. This is compliant with the
United States Department of Housing and Urban Development's findings that federal and state
non-discrimination laws does not require the Landlord to accommodate requests to use, possess
or cultivate medical marijuana from current or prospective tenants with disabilities.
Podcast Guest on Show #244
3 Reply
Max T.
Investor · Philadelphia, PA · Member since 2015 · 3k+ posts · 3k+ votes
11y
How about training the tenant:
"Medical marijuana may only be smoked in this room (bathroom) while the exhaust fan is running. The fan will pull all second hand smoke out of the property, leaving no residue or odor, and resulting in no damages to the property. Smoking anything else is prohibited in any areas of the property, including this room."
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Colleen F.Pro Member
Investor · Narragansett, RI · Member since 2013 · 8k+ posts · 4k+ votes
11y
I can't speak to Oregon but RI law does allow us to restrict smoking ( smoking is not the only way to consume Medical Marijuana) if we restrict it otherwise, not sure if you allow smoking whether you have to allow MM. We also recently had the following passed allowing cultivation to be restricted.
... however, due to the safety and welfare concern for other tenants, the property, and the public, as a whole, a landlord may have the discretion not to lease, or continue to lease, to a cardholder who cultivates marijuana in the leased premises.
It is not court tested. Cultivation makes it hard to show and can disturb other tenants.
It just gives you an idea of how these laws are developing nationally. I have a feeling it will take a while to get any real clarity.
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Bill S.Pro Member
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Rental Property Investor · Denver, CO · Member since 2013 · 4k+ posts · 2k+ votes
11y
@Max T. I completely disagree with your approach. The smoke residue will attach itself to the walls and ceiling of the room and will coat the interior of the exhaust fan as well as the piping to the exterior of the structure (some exhaust fans even just vent into the attic with no direct connect to the outside). That residue will retain odor. The odor will also be trapped in the dust and dirt that are attached to the interior of the fan and ducting. This same issue occurs with cooking smells in the kitchen ventilation system.
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Max T.
Investor · Philadelphia, PA · Member since 2015 · 3k+ posts · 3k+ votes
11y
@Bill S. agree to disagree then. Fans that exhaust into anywhere but exterior are not up to code and will cause major mold issues. That's a much bigger problem!
I've had success cleaning up after a heavy smoker who used my approach (before I acquired the property). I had to clean the light/fan with krud kutter, wipe down and repaint the walls and ceiling. In a small room it was no big deal. I was going to do it regardless.
Now, no smoke smell. Even my wife says it's gone!
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Bill S.Pro Member
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Rental Property Investor · Denver, CO · Member since 2013 · 4k+ posts · 2k+ votes
11y
@Max T. you just validated my statement. You had to clean up the property after the use. The point of non-smoking is to prevent then need for special cleaning due to the smoking. It allows you to show the property with the current tenant in place and thereby reduce your vacancy rate. If the property needs special cleaning, some prospective tenants have a hard time getting past those issues which reduces your pool of potential tenants. That means you may not be able to secure a new tenant until the property is vacant and cleaned resulting in a vacancy that would otherwise might not occur.
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Max T.
Investor · Philadelphia, PA · Member since 2015 · 3k+ posts · 3k+ votes
11y
@Bill S.A couple days vacancy to make ready after a long term tenant is par for the course and included in the budget.
And I'd prefer that over the possibility of opening myself up to discrimination based on disability. As several posts have mentioned, there is not much precedent on this issue in the courts yet. I like to play it safe.
Lucky for me in PA we don't have medicinal marijuana... so No Smoking is the rule! Just my advice to stay on the good side of the law for those in pot-states.
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Russell BrazilBusiness Member
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Real Estate Agent · Washington, D.C. · Member since 2012 · 17k+ posts · 30k+ votes
11y
The use of marijuana is still against federal law. The next administration may choose to enforce federal law. Even besides that, any federal law enforcement or prosecutor can decide to enforce it even if the DOJ does not
Allowing it in your rental properties opens you up to civil forfeitureof the property. Do not play Russian Roulette with the federal government. Protect yourself and do not allow the use of marijuana in your properties.
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Derek Daun
Investor · Sacramento, CA · Member since 2012 · 289 posts · 151 votes
11y
As long as medical marijuana is illegal on the federal level, I'd be comfortable not accomdating them since the Fair Housing Act is a federal law. Here's an article regarding California:
http://www.latimes.com/business/realestate/la-fi-r...
More importantly, there are much better ways for a true 'medical' users to use pot. Tell them you have no problem if they use a vaporizor (or any other method), but smoking of any kind is prohibited.
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Account Closed
Investor · Central Valley, CA · Member since 2012 · 6k+ posts · 3k+ votes
11y
Originally posted by @Derek Daun:

As long as medical marijuana is illegal on the federal level, I'd be comfortable not accomdating them since the Fair Housing Act is a federal law. Here's an article regarding California:
http://www.latimes.com/business/realestate/la-fi-r...
More importantly, there are much better ways for a true 'medical' users to use pot. Tell them you have no problem if they use a vaporizor (or any other method), but smoking of any kind is prohibited.
Do any medical marijuana prescriptions from MDs in CA that allow people to buy at clubs specifically prescribe smoking v. edibles or vaporizer, etc.? I just can't imagine a prescription from an MD that requires smoke inhalation. No issues with the use or growing, just the smoking indoors. I don't want to prohibit marijuana in the lease or not accommodate a medical need. Marijuana use and possession is now a misdemeanor in CA and I believe we are only a few years from mj being totally legal nationwide. But still want to understand if and how I can prohibit smoking indoors.
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Derek Daun
Investor · Sacramento, CA · Member since 2012 · 289 posts · 151 votes
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@Account Closed
I have never heard of any prescriptions requiring smoking, and like you, I can't imagine any legitimate medical reason for such.
For the time being, I think the regular 'no smoking' clause is sufficient. If someone pushes back, I would tell them using a vaporizor is fine. If they push back to that, I would want to see written verification that smoking is a medical requirement, and allow it if they provide documentation.
The question I have, is whether it's legal to ask for written verification. I'd think this is just like having an animal assistant. Is it acceptable to require documentation for a seeing eye dog?
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John Hamilton
Real Estate Transaction Engineer · Jacksonville, FL · Member since 2014 · 271 posts · 74 votes
11y
Even with medical use, it's still against Fed law, which supersedes State law. FBI/DEA can legally raid and impound your property.
"NO Smoking" clause in leases doesn't discriminate, unless you specifically mention Medical Marijuana use. State that violating this clause is grounds for eviction and forfeiting of ALL security desposits.
The type of people that will visit this place will most likely be pot smokers, too. Drug deals, minors, and that type of activity can, and most likely will occur.
If you don't care about smoking, that's a different situation. to got further, if you are a pot smoker, most likely will not have an issue.
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Vincent Crane
Realtor · Atlanta, GA · Member since 2015 · 693 posts · 357 votes
11y
I don't think it will affect the smell of your unit after they move out, it probably won't affect anything really.
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John Hamilton
Real Estate Transaction Engineer · Jacksonville, FL · Member since 2014 · 271 posts · 74 votes
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@Account Closed I know there are some patients that do get prescription from their doctor for certain ailments (glaucoma). Other than that, I think it's just a medical card issued, by the "doctor" to the holder to legally obtain marijuana for medical use. There is no prescription, although there may be a reason stated on the application (stress, depression, etc).
I agree that with Obamish in office, we are looking at making marijuana recreational use legal in all 57, uh 58, states.
I, as an owner, have the right to protect my investment. Smoke of any kind can damage a home. Pot is not as harmful as nicotine in many aspects, but the smoke does linger and is potent, much more than nicotine. Right now, there are no laws on the books that I know of. I would say as long as it's not a discriminatory clause or reason, I could demand no smoking. Is banning smoking discriminating? I don't think so as most, if not all, establishments in CA and other states ban smoking in their facility.
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Clayton Sneider
Investor, engineer · Longmont, CO · Member since 2013 · 55 posts · 36 votes
11y
While I would prefer that tenants don't smoke anything inside, I think marijuana is not that big of an issue compared to cigarettes. Marijuana simply does not cause the same level of permanent odor that cigarettes do. I am sure if a huge amount of pot was smoked in a house, there could be exceptions.
Personally, I have a no smoking clause in my lease. I know some of my current tenants smoke pot, not sure how much of that is inside, and I don't care enough to evict them over it.
If I knew that my tenants were constantly smoking cigarettes inside, I would evict them, because that could cause me to have to replace all the carpeting and repaint the entire inside.
If you have otherwise good tenants, that smoke pot, I don't think it is worth it to evict them personally.
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