Do tenants with a pot card have the right to grow or use marijuana at their homes? The smell left by second-hand smoke may be the least of the landlord’s worries. Tenants with a grow, even one the Compassionate Use Act allows, may attract attention from people that landlords would rather not come to the house. More than one holder of a pot card has tried to use it to shield a commercial grow. Some of those may have consulted with a medical professional specifically to further their agricultural ambitions, but others simply could not resist the temptation to grow a little more than they needed.
Despite Proposition 215, a landlord may evict a tenant growing marijuana on the premises. The law only exempts card holders from prosecution under California law. It does not give them rights against anyone else. Tenants cannot grow against their landlord’s wishes.
Growing marijuana is still a crime under federal law, and a landlord may evict a tenant who uses the premises for an unlawful purpose. Landlords knowing of, or turning a blind eye to, tenants’ marijuana cultivation are also committing a federal crime for which they face up to twenty years in prison. (Attorney General Eric Holder has announced that the Justice Department would generally not prosecute marijuana users complying with state law. Nonetheless, attorney’s ethical rules prohibit me from forecasting the likelihood of either prosecution or sentence.)
What about tenants who merely use or possess marijuana, whether medically or recreationally? After all, possession of any amount of marijuana is itself a federal crime. Whether the landlord may evict depends on how much the tenant is smoking: how continuous it is and whether it threatens some interest the landlord has in the property. So occasional use of marijuana would not be grounds for eviction. More extensive use, which could damage to the building or give it a reputation as drug house, is a different matter.
Laws against marijuana may well be stupid. But we have to live under the laws we have, not the ones we think would be better.