State laws on marijuana can vary greatly – from full legalization to full prohibition and all the options between. For landlords drafting a lease agreement for future tenants, it is important to stay up-to-date on this issue and check their local marijuana laws.

In the US, the laws around cannabis use have been changing state by state, and it doesn’t appear to be letting up. In fact, there are nearly 40 initiatives in 2016 across the country that could lead to decriminalization or some sort of legalization of the drug in certain states. Five or more states look hopeful for full legalization of recreational and medical marijuana if these initiatives pass. They would join the four states which have already legalized the drug.

If you are a landlord in a state that has or may legalize cannabis use, how could this affect your business? Better yet, what are some steps landlords can take to remain in control?

States that Prohibit Marijuana

Currently, there are 11 states that ban the use of any marijuana. If a landlord lives in one of these states, then the decision has already been made – marijuana should be treated the same as any other illegal drug. Although they might not need to specifically address cannabis usage, it is important in any lease agreement to include an anti-drug policy.

Here is an example of such a clause that can be included in a marijuana addendum when creating a lease agreement:

Using of cannabis and any other federally-prohibited drug is not allowed on the Premises. Further Tenant and their guest(s) will not engage in any drug-related illegal activity including but limited to medical cannabis on or near the Premises. Landlord may terminate this Agreement if Tenant and/or guests engage in such activities. If this provision is violated, Tenants will be subject to charges, damages, and eviction. Tenant forfeits their security deposit if there is any evidence of smoking on the Premises.

Even if a state currently has a ban on cannabis use, there is always a possibility that the laws will change in the future. Having an anti-drug or crime policy in the lease agreement will protect you if these laws change and also with any drug or crime-related problem that might arise.

States that Legalize Medical Marijuana

There are 23 states and DC that have legalized medical marijuana, and this brings up multiple questions for landlords who might have to negotiate their terms to a medical marijuana user. If marijuana is being used for medicinal purposes, can a landlord refuse to allow it inside their property?

Naree Chan, a legal consultant at LegalTemplates.net, explained:

“If a tenant insists on their right to use medical marijuana based on their disability, a landlord has the backing of the U.S. Supreme Court to stand their ground,” Chan said. “In the 2001 case of Oakland Cannabis Buyers’ Cooperative, the Court noted that the federal Controlled Substances Act does not carve out a medical necessity exception, even for a “seriously ill” patient.”

According to Chan, it is not considered discrimination if the landlord refuses to allow the use of medical marijuana. Although it is illegal for a landlord to refuse a tenant because of their disability, the landlord has the right to refuse the use of a federally-banned drug on their property, medical treatment or not.

Smoking marijuana in a property might be a problem for a landlord, just as cigarettes would be. Even though cigarettes are a legal substance nationwide, most enclosed public spaces – restaurants, bars, and private residences – have the right to ban smoking cigarettes inside. The case for marijuana is no different.

“If landlords do not want new tenants to smoke medical or recreational marijuana on their property, they can easily include a few sentences in their lease agreement that prohibit them from smoking or using either tobacco or cannabis,” Chan said. “For existing lease agreements, landlords can ask tenants to sign a supplemental Smoking Addendum agreeing to the same.”

If smoking is the only issue, it’s important to understand there are many different ways to administer medical marijuana. Some popular ways to use medical marijuana other than smoking include using a vaporizer, eating edibles, or using cannabis tonics and extracts. A landlord could choose to specify which types of medical marijuana usage is allowed as long as they include this clause in the lease agreement.

States that Legalize Recreational and Medical Marijuana

“Ultimately the landlord has a lot of discretion on what does or does not happen on their property,” Chan said.

Even if recreational and medical marijuana use is legal in the state, there remains to be a federal ban on the drug; therefore, it is up to the landlord to decide what is permitted on their property. Once the landlord has decided what types of cannabis use is agreeable for them, they should include a clause outlining those details.

Here are some marijuana addendum clauses that can be included in a lease to specify the approved cannabis use:

The use of tobacco and cannabis in accordance with state law is allowed on the Premises. Prior written consent of the Landlord is required before medical cannabis may be grown on the Premises. This is a non-smoking residence. No smoking, including medical marijuana, inside the home or on the Premise is permitted. However, consuming medical marijuana with a vaporizer or in cannabis edibles, tonics, or concentrates is permitted. No recreational or medical marijuana may be grown or consumed on the Premises by the Tenant(s) or guest(s) without the prior written consent of the Landlord.

Marketability is an important factor to consider when deciding the details of a lease agreement in states that have legalized marijuana. There is a potential to lose business if a landlord restricts the usage of cannabis in a state that has legalized it.

Evicting a Tenant for Marijuana Use

There might be an instance when a landlord needs to evict a tenant who violated an anti-drug or anti-marijuana clause in a lease agreement. If this occurs in a state where marijuana is banned, issuing an eviction notice to the tenant would be appropriate line of action.

Even in states where recreational and medical marijuana have been legalized, the landlord has the right to evict tenants who violate the terms of their lease, regardless of the state’s marijuana laws.

“If a landlord’s lease prohibits unlawful conduct under state and federal law, marijuana is still illegal under the federal Controlled Substance Act,” Chan said. “The landlord has the right to evict [tenants] for violating the terms of their lease.”

“If the landlord wants to outlaw all cannabis use entirely,” Chan continues. “They should actually include a fairly broad and sweeping clause that prohibits any and all conduct that violates local, state, and/or federal laws.”

Marijuana laws will likely continue to change in the US, and it will be up to landlords to take matters into their own hands. By staying informed and up-to-date on local laws, landlords can craft lease agreements and other legal documents that maintain their control over their property.

See United States v. Oakland Cannabis Buyers’ Coop. 532 U.S. 483, 494, n. 7 (2001).