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Medical Marijuana Patients Getting Evicted In Legal States

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Medical Marijuana Patients Getting Evicted In Legal States

At one time, before marijuana was legalized for medical purposes (and, indeed, sometimes for recreational purposes) across many states, tenants could be fairly sure that if they were caught smoking cannabis by their landlord they would be served with an eviction notice. However, these days, with the status of medicinal cannabis having changed across more than half of the USA, the situation is a lot less clear, and this has led to problems for both landlords and tenants alike.

There have been a number of stories recently about people in legal states who have been evicted for using medical marijuana that they need to maintain their quality of life. This has led to a dilemma over tenants’ rights, as patients struggle with a clash of State and Federal law.

The Clash Between State And Federal Laws

While medicinal marijuana has been approved for use to treat a number of health problems across 29 states, it is still an illegal substance under Federal law due to the Controlled Substances Act. This means that landlords are able to justify the eviction of tenants who possess cannabis, even if they have a valid medical marijuana card for use in the state where they live. Many private landlords remain reluctant to allow their tenants to use weed, even for legal medical reasons, and will take steps to act against any tenant found to be using the drug, whatever their qualifying condition.

This is even more likely to be the case in federally subsidized housing, since landlords are reluctant to risk breaking Federal law or losing Federal funding. Although the QHWRA guidelines stop short of requiring a landlord to evict a marijuana using tenant who is technically in breach of Federal law, even if they are complying with State legislation, they do give landlords the right to evict, and this is, unfortunately, all too often seen as the standard course of action.

What Does HUD Say On The Subject?

Although an attempt has been made to clarify this grey area by the Department of Housing And Urban Development, in the event it hasn’t really improved matters for medical marijuana using tenants. While the latest clarifications have stressed that eviction of cannabis-using tenants is not a requirement, it still clearly points out that, ultimately, it is down to the landlord’s own discretion whether to permit the tenant to stay or whether to give them their marching orders.

What About Case Law?

For patients who are facing eviction in legal states, seeking advice from a lawyer often becomes the only option, and tenants who hope to defend their case against their former landlord are still often on shaky ground. The problem is exacerbated by the fact that the law is applied differently in different states. For example, in Rhode Island landlords are prohibited from discriminating against or penalizing medical marijuana card holders, but in Michigan, landlords have no obligation to allow marijuana use on the premises and can refuse a tenancy even to those with a valid medical card. Still other states permit landlords to ban the smoking of medical marijuana on their premises but not the consumption of edibles. This complicates matters even further.

In most cases, landlords are allowed to evict a tenant for using medical cannabis as long as the matter has been addressed in the lease agreement – after all, landlords are permitted to include lease terms that prohibit smoking tobacco on their property even though it is a legal substance. This is not an ideal situation for patients who rely on their marijuana to relieve their pain and symptoms.

Can Tenants Defend Their Case?

For tenants who are facing eviction due their medical marijuana use, the primary problem when it comes to defending their case is that judges in general do not view recommendations for medicinal marijuana as valid. Yet, the question remains about whether contract terms that bar marijuana use regardless of medical need could be considered to be unconscionable. This gives patients the opportunity to make a case to this effect in court.

When residents suffer from a disability under the terms of the Fair Housing Act, they could claim that using cannabis in their place of residence would count as “reasonable accommodation”. Unfortunately, this would be left up to the judge’s discretion, since housing providers have no obligation to permit it due to the Fair Housing Act being a Federal law.

The Way Forward

The way things stand at present, it’s clear that those who rent their homes are put at a disadvantage when it comes to using medical marijuana. While those who own their own properties can use cannabis whenever they need to, tenants remain at the mercy of their landlords. It’s no wonder that demonstrations are now being held to protest against such policies. Several protests have already taken place in April 2018 to campaign for the rights of tenants, so it will be interesting to see what steps, if any, are taken in response.

 

Sources:

https://www.hud.gov/sites/documents/MED-MARIJUANA.PDF

https://www.buildium.com/blog/marijuana-policy-landlords-property-managers/

https://herb.co/marijuana/news/housing-marijuana-evictions

https://www.leafly.com/news/cannabis-101/can-my-landlord-kick-me-out-for-smoking-weed

 

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