Federal vs. State: Recreational and Medicinal Marijuana

Morgan A. Stewart, partner at Manly, Stewart & Finaldi, took some time at this year's NMHC OpTech conference to talk about the legalization of marijuana and the impact on the multifamily industry.

by Alex Lopez 
San Diego—A controversial topic was discussed during the recent OpTech conference in San Diego. The issue at hand doesn’t really have a solution just yet but is a growing problem­—for some—within a couple of states. For anyone who keeps up with the news knows that states such as Colorado have recently legalized the recreational use of marijuana. Other states such as California have legalized medicinal use. Morgan A. Stewart, partner at Manly, Stewart & Finaldi, spoke about this issue at the NMHC OpTech conference and opened the floor to owners to speak freely about it.

He started by referencing the country’s law. “Contrary to the state’s legalization, federal law still says that the use of marijuana in any form is illegal as it is classified as one of the most dangerous drugs out there,” Stewart said. He then went on to explain that the federal government, at this time, holds marijuana in the same class as heroin—not even cocaine sits at this high of a classification. What this means is, even though California legalized marijuana in a medicinal sense, the U.S. government does not recognize any medicinal use for the drug.

There have been talks to lower the classification but that still doesn’t offer a solution to the problem,  so how do you go about preventing the use of marijuana on your property in states where it’s legal in one form or another?

In recreational states, the cleanest way to prevent this is to outline it in the lease. Specifically state “no marijuana use on this property,” Stewart said. It’s not as easy to just put the “no smoking” clause because marijuana can be ingested in more than one way, for example, it can be turned into an edible form.

When it comes to medicinal states, it gets a little more difficult. Trying to impose no marijuana clauses in medicinal areas doesn’t quite go as smoothly as recreational might. When trying to enforce these rules you’re actually breaking Fair Housing Rights, Privacy Rights and HIPAA Rights because it’s a prescription medication. Legally as an owner, you cannot tell your resident that they can’t take their prescribed medicine on your property. You can’t even enforce a non-smoking clause because some doctors prescribe marijuana in a smoking sense because it might hit the area it needs to faster that way.

Until the federal government starts being more hands-on with the legalization of marijuana there won’t be a clear-cut solution to these roadblocks owners are facing now. Most leases state that residents won’t break federal or state law while on the property but how do you enforce this clause when the state and federal laws go against one another?

Expect this topic to continue to become a bigger discussion in years to come, especially with more states talking about hopping aboard the marijuana express—for tax revenue purposes among other reasons. As it becomes a larger topic expect more cases between landlords and residents to start popping into the public eye and only then will owners get the clear cut answer they desire.