What should landlords do now that Minnesota has legalized the recreational use of marijuana? Can landlords prohibit tenants from smoking or vaping cannabis? The short answer is yes, landlords can' prohibit tenants from smoking or vaping marijuana on the rental premises, but cannot prohibit tenants from legally possessing or ingesting cannabis. The actual answer is much more complicated than this brief summary.
The key language that landlords need to pay attention to is this addition to Minn. Stat. 504B.171:
"A landlord cannot prohibit a tenant from legally possessing, and a tenant cannot waive the right to legally possess, any cannabis products, lower-potency hemp edibles, or hemp-derived consumer products, or using any cannabinoid product or hemp-derived consumer product, other than consumption by combustion or vaporization of the product and inhalation of smoke, aerosol, or vapor from the product."
Although the possession and recreational use of marijuana is now permitted by Minnesota state law, those actions remain a federal crime under federal law. Section 8, housing voucher, and other federally funded programs clearly fall under federal law – in violation of the federal law would be grounds for eviction. It could be argued that federal involvement in any rental premises – be it in the form of a mortgage, a government loan, receipt by the tenants of government assistance, etc. – brings the rental premises under the ambit of federal law.
What makes the new laws difficult for landlords is that landlords are stuck between a rock and a hard place, almost literally. On the one hand, landlords can be sued for not enforcing the lease under a theory of nuisance. In other words, let's say that tenant A is smoking marijuana in their unit and the smell disturbs tenant B. Tenant B can sue the landlord for not enforcing the no smoking provision in the lease.
The choice for landlords is not really much of a choice. Landlords can either bring evictions against tenants who are violating a no smoking policy that they will almost surely lose because they will not be able to meet their burden of proof in the absence of criminal charges brought by law enforcement, or risk being sued if another tenant is affected. In other words, landlords are being mandated to file evictions that they will lose. This mandate is not funded. As far as I know, there are no funds that landlords can tap into to bring an eviction that they will lose.
If a tenant decides to violate a no smoking policy, and the landlord does not have proof of that violation, a smoking gun, or a smoking joint in this case – then the landlord is faced with an impossible choice. Landlords can either bring evictions against tenants that are violating a no smoking policy that they will almost certainly lose, or risk being sued if another tenant is affected by the violation of the non-smoking policy. As far as I know, there are no funds available for landlords to bring evictions that the landlord will lose.
I would like to think that this does not happen very often, but I have heard anecdotally from many landlords otherwise, that they have a tenant who they know is smoking pot (I always ask, "how do you know? The reply is, "Because I can smell it.") What the landlord has is a suspicion, but either one would not like to bring an eviction based solely on a landlord's smell.
The question arises of whether a tenant with medical authorization to use marijuana can request a reasonable accommodation, and whether the landlord will be liable for not granting that accommodation, much like the process for requesting a reasonable accommodation to a "no pets" policy based on the need for a companion animal. This is an interesting question, but beyond the scope of this blog post.
Because of the new laws impacting landlords and tenants, I am recommending that all of my clients offer only month to month leases, so that a landlord can give notice to vacate and then evict based on that notice, which is much more solid of a ground for eviction then the wishy-washy smell.
Every landlord – tenant situation is unique, and I recommend that landlords talk to an attorney experienced in evictions and landlord tenant law before taking action based on this blog post. To that end, I invite landlords to give me a call at 763-290-0445 to discuss their unique situation. I have represented many landlords, but typically do not represent tenants.
WARNING: The information contained in this blog post does not constitute legal advice and may not be applicable to your situation. Tim is licensed to practice law only in Minnesota, and the information contained in this blog post may not apply to jurisdictions outside of Minnesota. Further, reading this blog post does not create an attorney-client relationship between you and Baland Law Office, P.L.L.C. You should always discuss your situation with an attorney before taking any action based on what you may read in this blog. To that end, please call (763) 290-0445 to set up an appointment to discuss your situation.
The key language that landlords need to pay attention to is this addition to Minn. Stat. 504B.171:
"A landlord cannot prohibit a tenant from legally possessing, and a tenant cannot waive the right to legally possess, any cannabis products, lower-potency hemp edibles, or hemp-derived consumer products, or using any cannabinoid product or hemp-derived consumer product, other than consumption by combustion or vaporization of the product and inhalation of smoke, aerosol, or vapor from the product."
Although the possession and recreational use of marijuana is now permitted by Minnesota state law, those actions remain a federal crime under federal law. Section 8, housing voucher, and other federally funded programs clearly fall under federal law – in violation of the federal law would be grounds for eviction. It could be argued that federal involvement in any rental premises – be it in the form of a mortgage, a government loan, receipt by the tenants of government assistance, etc. – brings the rental premises under the ambit of federal law.
What makes the new laws difficult for landlords is that landlords are stuck between a rock and a hard place, almost literally. On the one hand, landlords can be sued for not enforcing the lease under a theory of nuisance. In other words, let's say that tenant A is smoking marijuana in their unit and the smell disturbs tenant B. Tenant B can sue the landlord for not enforcing the no smoking provision in the lease.
The choice for landlords is not really much of a choice. Landlords can either bring evictions against tenants who are violating a no smoking policy that they will almost surely lose because they will not be able to meet their burden of proof in the absence of criminal charges brought by law enforcement, or risk being sued if another tenant is affected. In other words, landlords are being mandated to file evictions that they will lose. This mandate is not funded. As far as I know, there are no funds that landlords can tap into to bring an eviction that they will lose.
If a tenant decides to violate a no smoking policy, and the landlord does not have proof of that violation, a smoking gun, or a smoking joint in this case – then the landlord is faced with an impossible choice. Landlords can either bring evictions against tenants that are violating a no smoking policy that they will almost certainly lose, or risk being sued if another tenant is affected by the violation of the non-smoking policy. As far as I know, there are no funds available for landlords to bring evictions that the landlord will lose.
I would like to think that this does not happen very often, but I have heard anecdotally from many landlords otherwise, that they have a tenant who they know is smoking pot (I always ask, "how do you know? The reply is, "Because I can smell it.") What the landlord has is a suspicion, but either one would not like to bring an eviction based solely on a landlord's smell.
The question arises of whether a tenant with medical authorization to use marijuana can request a reasonable accommodation, and whether the landlord will be liable for not granting that accommodation, much like the process for requesting a reasonable accommodation to a "no pets" policy based on the need for a companion animal. This is an interesting question, but beyond the scope of this blog post.
Because of the new laws impacting landlords and tenants, I am recommending that all of my clients offer only month to month leases, so that a landlord can give notice to vacate and then evict based on that notice, which is much more solid of a ground for eviction then the wishy-washy smell.
Every landlord – tenant situation is unique, and I recommend that landlords talk to an attorney experienced in evictions and landlord tenant law before taking action based on this blog post. To that end, I invite landlords to give me a call at 763-290-0445 to discuss their unique situation. I have represented many landlords, but typically do not represent tenants.
WARNING: The information contained in this blog post does not constitute legal advice and may not be applicable to your situation. Tim is licensed to practice law only in Minnesota, and the information contained in this blog post may not apply to jurisdictions outside of Minnesota. Further, reading this blog post does not create an attorney-client relationship between you and Baland Law Office, P.L.L.C. You should always discuss your situation with an attorney before taking any action based on what you may read in this blog. To that end, please call (763) 290-0445 to set up an appointment to discuss your situation.
RSS Feed