November 2012 With a 63% to 37% vote on Ballot Question 3 in the recent election, medical marijuana became legal in Massachusetts, presenting yet new problems for landlords.
The ballot question authorizes the growing and distribution of medical marijuana from any “enclosed, locked facility,” including a “closet” or “room,” which tacitly includes apartments. Qualifying patients with a hardship in accessing one of 35 marijuana dispensaries to be established are allowed to grow their own 60-day supply of marijuana. Where else will they grow it but in their apartments?
Here are the problems in Ballot Question 3 for rental property owners.
Legalizing medical marijuana in Massachusetts now conflicts with federal law, which outlaws marijuana entirely. As a result, property owners whose apartments will be used to grow and distribute marijuana could have their properties summarily taken away under federal law. This civil asset forfeiture does not require any criminal charge or conviction against the landlord. It only requires a “substantial connection” between drug activity and a property, and that connection may not even require the landlord’s awareness.
In other states, landlords have gone to prison, had past rents forfeited as drug money and have had enormous fines levied against them for having medical marijuana on their properties. Legalizing medical marijuana exposes Massachusetts landlords to these horrendous risks.
Meanwhile, since federal and state laws prohibit discrimination against persons with disabilities – in this case, medical marijuana patients – landlords would not be able to ask prospective tenants about medical marijuana or refuse to rent to them or evict them. Without a change in Question 3’s language, anti-discrimination laws would force landlords into medical marijuana tenancies, with all the risks of civil asset forfeiture, property damage, crime and other problems. Landlords must have a choice.
Ballot Question 3 authorizes the growing of a 60-day supply of medical marijuana in apartments – estimated as up to 24 plants six feet high. The potential damage to apartments is serious and dangerous. From other states that already have medical marijuana, we know that it can result in:
• fires (when electrical lines serving extensive artificial lighting are “hot wired” to avoid detection and high electric bills),
• costly-to-remedy mold (from the constant humidity of a “grow operation”),
• water and humidity damage (buckled floors, peeling paint and wallpaper and other forms of damage).
In short, residential units are not greenhouses.
Denial of access
Under the provisions of Question 3, which require an enclosed, locked facility “accessible only to dispensary agents, patients, or personal caregivers,” landlords would be locked out of their apartments and unable to get in if an emergency occurs or to inspect for a potential host of health, safety and sanitary code violations that they are responsible to fix. They would not have access even to make repairs.
Many landlords now have no-smoking policies, and many tenants have disabilities – allergy, emphysema and COPD – that create problems with smoke. There needs to be provision for these legitimate concerns.
We know from other states that growing marijuana can lead to more serious, clandestine drug operations, bringing criminal activity in and around residential buildings.
Insurance & mortgages
Because medical marijuana would still be illegal under federal law, could cause various types of property damage and may involve a commercial transaction between a caregiver and a patient, insurance policies and mortgages may become invalid or may need to be revised. Insurance akin to insurance on a liquor-selling property may be needed.
What legislators can do
The problems can be mostly remedied – without denying medical marijuana to authorized patients – by changing the ballot question’s language. The State Legislature in its wisdom can make such changes. The State Legislature in its wisdom can alter the language of the Ballot Question now that it has passed.
We suggest giving property owners and their agents:
- the option to choose whether to allow cultivation and use of medical marijuana in their property – which should explicitly make a patient’s need for medical marijuana not a disability with respect to anti-discrimination laws. The Oregon Supreme Court recently ruled that landlords in that state may choose not to have medical marijuana tenancies.
- the right to access any apartment with a marijuana grow operation in case of emergency, to inspect for damage or health and safety risks and to make repairs.
- the right to establish a no-smoking policy that includes medical marijuana.
Alternatively, the Legislature could prohibit marijuana growing entirely in residential properties.
A landlord’s property often represents decades and even generations of hard work. And often a property figures as a large part of an owner’s retirement plans. We certainly hope the State Legislature will respect the concerns of rental property owners.
Landlords need to take action and contact their state legislators. It takes both good ideas and voter support to influence the State Legislature to act.
Act Now on medical marijuana!