On November 8, 2016, the people of the State of California overwhelmingly passed Proposition 64 or legally known as “The Adult Use of Marijuana Act” (AUMA) with 57.1% in favor. While initially, the implications of this new law may not be known, it is very clear that this new law will have a significant impact on California’s residential landlord-tenant laws. As a landlord, it is important to understand the law and do what is necessary to protect yourself from potential liability.
1. Adult Use of Marijuana Act: What is it?
The purpose of AUMA is to establish a comprehensive system to legalize, control and regulate the cultivation, processing, manufacturing, distribution, testing, and sale of nonmedical marijuana, including marijuana products, for use by adults 21 years and old. Relevant for residential landlords, this law essentially legalizes use of marijuana for anyone 21 years or old. Additionally, it allows anyone 21 or over to “plant, cultivate, harvest, dry, or process not more than six living marijuana plants…” (See Proposition 64 Section 4.4).
2. How Does It Affect Residential Rentals?
It is obvious to see how this new law could have serious implications on residential rentals. First, while use or grow of marijuana is legal in California, it is still technically illegal to use or grow marijuana under Federal law. If a tenant were to use or grow marijuana in a rental unit, the landlord may be liable if a federal agency were to inspect the property.
Second, a normal residential lease agreement typically prohibits “smoking.” However, it is unclear if “smoking” includes use of marijuana. Additionally, at this point, no residential lease agreement specifically prohibits use or growth of marijuana. Therefore, tenants (without an expressed prohibition against the use or growth of marijuana) would then still be able to use or grow marijuana without violating the lease agreement.
3. What can Landlords do to Protect Themselves?
It is clear that AUMA will affect California landlord-tenant laws, but at this point that actual implications is unclear. What is clear is that there will be disputes arising regarding tenant’s use or growth of marijuana if landlords do not proactively take steps to protect themselves.
The easiest step is to look at the lease agreement. When signing a new lease, landlords should include an addendum that expressly prohibits the use or growth of marijuana. (Note: Provision prohibiting use of medical marijuana could be unenforceable, so be careful on the terms) Landlords with current tenants should inquire with their current tenants if they would agree to sign a lease addendum that prohibits the use or growth of marijuana.
Note: The information provided here is intended for informational purposes only and not legal advice. For specific circumstances, please consult an attorney.