Evicting Toking Tenants
Can a Landlord Evict a Tenant for Smoking Pot? Maybe, but it's not so easy...
Conflicting marijuana laws at the federal, state, and local levels have created uncharted legal territory across numerous areas of law including landlord-tenant law. This article addresses whether a landlord can legally and successfully evict a tenant for smoking marijuana; just how protected are a pot-smoking tenants rights?
Right to Evict
The first issue to consider is whether the landlord has the right to evict. The specific type of lease addressed here is a fixed-term residential tenancy. Tenancy at will or month-to-month tenancies are less applicable because a landlord generally need not have cause to evict a month-to-month tenant. In contrast, a fixed-term lease (e.g. 1 year lease) contractually binds the landlord and the tenant for the amount of the term. Terminating that fixed-term lease prematurely constitutes a breach of contract.
If a landlord wishes to evict a tenant with a fixed-term lease, the landlord's only options are to provide a three-day notice. There are two types of three-day notices: 1) notice to perform covenant or quit; and 2) notice to quit. The first options allows the tenant three days to correct the problem, whereas the latter requires the tenant to move out in three days. In either event, for a landlord to successfully evict with a three-day notice, the landlord must have "just cause." The issue of this article is whether smoking marijuana constitutes "just cause."
By way of a disclaimer, drug dealing and smoking marijuana are not the same. Under California law, landlords must evict a tenant who is dealing drugs.
Whenever a contract forms the relationship that is now at issue, the contract is the first place to look to resolve the issue. In landlord-tenant law, the guiding contract is the lease. Tenants should be mindful that merely because language is included in a lease does not mean it is legal and binding. Nevertheless it is always the best starting point.
Two relevant sections commonly found in a landlord-tenant lease are that which relates to smoking and that which relates to violating the law as just cause for terminating the lease.
After reviewing many leases, a common occurrence is that "smoking" is defined specifically by "tobacco products." Marijuana is clearly not a tobacco product. Therefore, any lease which bans the smoking of tobacco products would not likely apply to the smoking of marijuana products. As to the latter, it is debatable whether possessing marijuana violates the law.
Legality of Marijuana
Whether marijuana is a legal or illegal drugs depends on whether you ask a federal or state law enforcement agent. Federally, marijuana is still illegal. In California, medical marijuana is legal. At some smaller, local levels, marijuana is illegal. There really isn't a "right" or "wrong" answer here, but an analysis of the laws can provide some guidance on how courts are likely to rule.
The first issue to wade through is whether federal or state law applies. Eviction actions, known as Unlawful Detainers, are generally state court proceedings. Therefore, the state courts will likely comply with California law.
The second issue is when possession of marijuana is illegal in California. Under California law, possession of certain amounts of medical marijuana is legal if the possessor also has a medical marijuana prescription. Failure to possess a prescription technically makes possession "illegal."
The final issue is whether a tenant's "illegal" possession of marijuana, is a sufficient violation of the law to constitute just case to terminate the tenancy early. In California, a person who possesses 28.5 grams of marijuana or less is only guilty of an infraction but more than 28.5 grams is a misdemeanor. (Health & Safety Code § 11357.) An infraction is comparable to getting a speeding ticket. With that comparison in mind, a tenant with less than 28.5 grams of marijuana has a colorable argument that they are not breaking the law as defined in the lease. On the other hand, a landlord has a very valid argument that the tenant's failure to obtain a medical marijuana prescription makes his or her possession of marijuana illegal. Different courts could rule differently on this issue.
Based on the foregoing, the lease in itself may not provide a bright-line answer to when or whether possession of marijuana by a tenant is legal. However, it is far more likely a California court would agree with the tenant if he or she has a valid prescription.
Right to Quiet Enjoyment
Regardless of whether it is affirmatively stated in the lease, a landlord is required to provide for its tenants quiet enjoyment. Examples of nuisances which violate this covenant of quiet enjoyment and interfere with the comfort, convenience, or health of an occupant are: foul odors; noxious gases; smoke; dust; loud noises; excessive light; and high temperatures. To some tenants, this may mean their right to live in their unit without suffering the daily intake of their neighbor's second hand marijuana smoke. However, the toking tenant would likely argue that their right to enjoy their unit includes the right to smoke marijuana.
This is clearly a balancing act between tenants since violating the right of one can lead to liability for a breach of the other's right to quiet enjoyment. One consideration is whether multiple tenants are bothered. If multiple tenants are bothered, the landlord will have a stronger argument that the marijuana smoke constitutes a nuisance. If only one tenant is bothered, the landlord must suffer the balancing act and determine which tenant they would rather protect and which tenant they would rather risk being liable to.
All hope is not lost for landlords faced with the issues described above. First, the landlord may suggest that the tenant use alternative means of enjoying the marijuana. Examples include consuming the marijuana in food, or using a vaporizer. It may even be cheaper for a landlord to buy the tenant a vaporizer or air filter to mitigate the disturbance and avoid suit by either party. Further, the landlord may be able to propose alternative areas of the unit to smoke in, such as near a different window, doorway or only with the windows closed.
As this area of the law evolves, we may eventually see concrete answers to the issues discussed above. However, at that point, the laws may have already changed yet again. Whether you are a tenant or a landlord wondering what your rights are regarding marijuana or any other landlord-tenant issue, please contact an attorney. At the Law Offices of Tara Burd, we would be happy to provide either party with a flat fee assessment of your landlord-tenant issues.
This article does not create an attorney-client relationship nor is it meant to be construed as legal advice, but merely informative.