The following is for study only and has NOT been approved by the
Property Management, Legislative or Executive Committees, or the Board of
Issue: What options are available to rental property
managers who discover a tenant in possession of a medical marijuana
prescription and engaged in either growing or distributing marijuana in the
rental property they manage?
Action: Not Applicable
During its October, 2007 meeting, C.A.R. staff was directed to determine
what options are available for property managers who learn of a tenant with
a prescription for medicinal marijuana, and/or discover marijuana growing
and/or being distributed in their portfolio. This Issues Briefing Paper
will evaluate the status of current law regarding the growth and
distribution of marijuana and how that law impacts rental property
I. STATE LAW
In 1996 Proposition 215 (The "Compassionate Use Act of 1996'; hereinafter
the "Act") was passed by the California voters, and made California the
first of a dozen states to legalize marijuana. It permitted Californians
with valid doctor's recommendations to possess and cultivate marijuana for
personal medical use.
II. FEDERAL LAW
Despite a number of state laws similar to the Act (e.g., Alaska, Arizona,
Hawaii, Maine, and Washington), possession, cultivation, or distribution of
marijuana is a punishable federal offense. The U.S. Supreme Court has ruled
that state laws confer no immunity from prosecution under federal law, and
that includes a medical exemption to the prohibition on marijuana
possession. See Gonzales v. Raich,545 U.S. 1 (2005), and United States v.
Oakland Cannabis Buyers? Cooperative, 532 U.S. 483 (2001).
The current conflict between federal and state laws renders the decisions
for rental property managers rather difficult. The "bottom line", however,
is that federal law prohibits the use and/or distribution of marijuana,
irrespective of the purpose for which such activity is purported to serve.
California law does NOT "trump" federal law. That places any tenant
engaging in such activities subject to termination of his or her tenancy
due to unlawful conduct engaged in or on the rental property. Governance
rules for the rental property should reflect this fact.
The situation becomes a bit more ?cloudy? for rental property managers when
they discover, or it is disclosed to them, that a tenant has a prescription
for the use of medicinal marijuana. To avoid potential allegations of
unlawful discrimination against a disabled person, the property manager
should tread more carefully upon such a discovery. According to the C.A.R.
Legal Department, the tenant should be informed, verbally and in writing,
that notwithstanding the prescription for medicinal marijuana, it CANNOT be
possessed or used on the rental property at any time. As long as the tenant
complies with such a rule, the tenant should not have his or her tenancy
terminated. Finally, this prohibition should also be reflected in the
rental property's governance rules.
Please note: This IBP is not a legal opinion. Is it appropriate for the
Committee to request a Q & A on this topic from the Legal Department?