Weekly Training Tip: Marijuana and Multifamily Properties - Grace Hill
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Weekly Training Tip:
Marijuana and Multifamily Properties

Posted on January 30, 2018 by Grace Hill

Grace Hill Training Tip of the Week

 

When Federal and State Laws Conflict: Marijuana and Multifamily Properties

 

Editor’s Note: Grace Hill worked with our attorneys at Haynsworth Sinkler Boyd on this piece. We are grateful for their insights and expertise in navigating this tricky topic! 

 

Marijuana possession is illegal under federal law. Pursuant to the Controlled Substances Act, it is classified as a Schedule I substance, which are defined as drugs with no currently accepted medical use and a high potential for abuse. According to the Office of National Drug Control Policy, marijuana is the most commonly used illicit drug in the United States.

 

Multifamily housing providers are generally permitted to prohibit the use or possession of marijuana as part of a smoke-free policy, but consider being explicit about marijuana in your smoke-free policy.

However, thirty (30) states plus the District of Columbia have legalized marijuana either for recreational or medicinal uses. This conflict between federal and state law creates confusion in the multifamily property management industry.

 

As you face questions about marijuana use, it may help to keep in mind that federal law supersedes state law. Among other things, this means that you are not obligated to “permit” breaking federal law to allow a resident to do something that is legal under state law. Here are two implications of this for multifamily properties.

 

Multifamily housing providers are generally free to prohibit the use or possession of marijuana as part of a smoke-free policy, even in states where recreational or medical marijuana use is allowed (but see below explanation regarding accommodations). Consider being explicit about marijuana in your smoke-free policy. Articulate a clear enforcement plan and apply the policy consistently to all prospects and residents to avoid discrimination claims.

 

Also, under the Quality Housing and Work Responsibility Act of 1998 (QHWRA), many HUD-assisted housing owners must deny admission to assisted housing for any household with a member determined to be illegally using a controlled substance. The QHWRA also permits owners to evict current residents for their use of marijuana.

 

If you receive a request for an accommodation for medical marijuana use based on a tenant or applicant’s disability, you should proceed carefully. The law on this issue is evolving rapidly, and it is advisable to seek legal counsel on these requests. The FHA is clear that a disability “does not include current, illegal use of or addiction to a controlled substance.” However, a tenant may be taking medical marijuana to treat a condition that is considered a disability.

 

Even if a person has a recognized disability, there are reasons that an accommodation to smoke marijuana might not be considered “reasonable.” For example, an accommodation that allows conduct in violation of a federal law constitutes an undue burden. Further, other problems exist such as second-hand marijuana smoke traveling through ventilation systems and bothering residents in common areas. However you proceed, be consistent with all prospects and residents in similar situations.

 

This is just the tip of the iceberg on this topic, and a lack of relevant case law makes it tricky to navigate. The courts will likely address this issue in the coming years and provide some clarity. Until then, consider your policies carefully, and err on the side of consulting an attorney as you face marijuana-related issues at your multifamily properties.

Grace Hill’s marketing content team aims to create informative resources that help multifamily and commercial industry professionals elevate their performance. From blog posts and ebooks to infographics, checklists and webinars, the Grace Hill team has a singular focus: creating meaningful and engaging content that resonates with real estate professionals across the industry.    However, what makes Grace Hill so unique is the range of collective experience and collaborative spirit of its marketing content team. A group of talented writers with expertise in the real estate industry, overall management effectiveness, marketing strategy, and operational efficiency, the team provides new ideas to take performance to the next level. As a thought leader, Grace Hill's content team constantly pushes the envelope, experimenting with new resources and tools to keep industry professionals ahead of the curve.  Whether you're a seasoned pro or just starting out in the real estate industry, the content team at Grace Hill is creating resources to help you succeed. Learn more about Grace Hill on LinkedIn.

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