December 3, 2018

Written by Taylor Ulrich, Esq.

Housing Rights for Tenants with Patient Recommendations

Housing providers are free to regulate conduct unrelated to any fair housing protected class however they choose. An outright ban on the use, possession, or cultivation of marijuana on site does not violate any landlord/tenant or fair housing laws, even where marijuana has been legalized by local ordinance or state statute. Under federal law, patients have no rights and all marijuana is illegal. Therefore, marijuana cultivation, use, and possession could pose problems for any tenant. Fortunately, federal law enforcement has little interest in the individual patient-cultivator tenants, and the owners of the residences face little risk of asset forfeiture. Nonetheless, it’s important to know your rights and how to best advocate for yourself.

Preliminary Precautions – Know your Lease

You are not required to inform your landlord of your patient status because of your right to medical privacy. However, it is important to assess your immediate community to determine whether they are likely to be offended by the smell of smoke and whether there are children in close proximity. When considering a new lease, you should be on the lookout for a provision requiring you to obey both state and federal laws. If this provision exists, you should negotiate so that it only requires obeying state law. In other words, get ahead of potential problems.

Practice Discretion

Do what you can to avoid conflict and be a good neighbor. Here are some tips to do that:

  • Odors could produce your biggest problem. Stick to edibles, tinctures, and/or vaporize when possible.  If you must smoke, be strategic about where you do so and use an air filter to minimize the odor.
  • Cultivate indoors when possible and familiarize yourself with all relevant safety procedures.  Make sure that your grow doesn’t damage the apartment and take all necessary precautions to prevent a fire or flood. If you must cultivate outside, secure the grow and post all recommendations in plain view so that they can be seen. Do what you can to minimize the odor during harvest.

Conflicts with your Landlord

Because patients’ rights as tenants are still a grey area, one must proceed with caution and with the goal of avoiding conflict. Remain flexible and work with your landlord.  Communicate to your landlord why you are a patient and what your rights are under state law. Try to reassure your landlord that there will no damage nor nuisance produced by your usage or cultivation.

Complaints or civil suits against your landlord

If you are evicted solely because of your patient status or possession of a legal amount of medicine, you can file a complaint with the Dept. of Fair Employment and Housing. The Fair Employment and Housing Act says landlords must try to reasonably accommodate tenants with disabilities who have some specific protections. Unfortunately, because of the current state of the law, it is unlikely your FEHA Complaint will have results. However, it could at least progress the conversation with your landlord.

Consult a Lawyer

All of this being said, consulting a lawyer for advice could prove worth the time and money.

Disclaimer: This article has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice.