Landlord–tenant law was not all that riveting 10 years ago when Matthew I. Paletz first started practicing law.
But in the past few years, as states have adopted medical marijuana statutes, more cases have come to the forefront of the dockets.
“It’s a hot topic, without a doubt,” Paletz says. “And it doesn’t seem like it’s going away, either.”
Paletz, a managing partner of Paletz Law Firm in Troy, Mich., says the most entertaining and intriguing part of the law is that it’s open to interpretation.
Michigan passed a medical marijuana law on a 2008 ballot allowing patients with a certified prescription card to possess up to 2.5 ounces of the drug.
This became problematic to those owners and operators who are using federal funds in their developments. Marijuana is one of the illegal controlled substances prohibited in federal housing communities, according to a U.S. Department of Housing and Urban Development (HUD) statement.
Landlords and housing authorities participating in the rental assistance programs have the right to evict tenants based on their use of marijuana.
“However, under the law, housing authorities and landlords may use discretion when deciding to terminate assistance for Section 8 tenants or terminate tenancy for public housing residents to those who violate housing authority policies,” the HUD release states. “Basically, while there's a requirement that housing authorities and landlords have lease provisions that give them the right to evict, that decision is theirs.”
Michigan lawyers, like Paletz, have been struggling to help landlords and tenants decide which cases are acceptable and which aren’t, without being discriminatory.
“I would advise a landlord that you need to uniformly enforce the rule,” Paletz says. “You can’t just pick and choose, because then you could face some discriminatory blowback.”
Cases are working their way through the Michigan court dockets, including one case that challenges the validity of the law and has made it to the state’s Supreme Court.
The city of Wyoming, Mich., enacted a local ordinance prohibiting the use of marijuana. The ordinance is being challenged in the case Ter Beek vs. City of Wyoming.
John Ter Beek, a medical marijuana patient, is challenging the law, and the outcome of his case could change the validity of the use of medical marijuana statewide, affecting all households, both owned and rented.
Because the issue is such a hot topic, Paletz puts together literature for his clients about it. He’s changed the literature about three times to keep up with the interpretations.
The most solid opinion on how to interpret the law came in 2011, from the state’s attorney general, Bill Schuette.
The opinion leaves the choice of whether to ban smoking up to the landlord, but Paletz warns that it’s only an opinion and not a mandate or judgment.
“I haven’t seen much as far as federal enforcement,” he says. “But that’s always subject to change.”
While some landlords are finding themselves in court to try to figure out how to deal with the legalities of medical marijuana usage, others are simply making decisions as they go.
Michael Tobin says his properties aren’t subject to the federal substances list because they are privately funded and operated communities, so he and his board call the shots on what’s allowed and what isn’t. However, smoking pot hasn’t been a problem since the passage of the state proposal allowing it for medical use.
Tobin, vice president of the Apartment Association of Michigan and president of Group Five Management, based in Farmington Hills, says his company hasn’t taken a strict stance on stopping residents from smoking medical marijuana.
“We don’t have a ban on smoking [tobacco cigarettes],” he says. “So, who am I to tell you that you can’t [smoke medical marijuana]?”
However, the company did have concerns about residents growing marijuana legally and decided to prohibit tenants from growing medical marijuana plants despite what state law may allow.
“We amended our rules about the growing because [the plants] need a lot of moisture and it would be harmful to the buildings,” Tobin says.
Growing the drug has become a problem for landlords in Colorado, since marijuana is no longer restricted to medical use in the state, but is allowed as a recreational substance, too.
The Colorado Apartment Association has advised landlords to enforce a no-smoking rule as the state tries to navigate what kind of enforcement stance to take, says Nancy Burke, the trade group's vice president of government affairs.
The state has yet to set hard regulations on the usage and distribution of the drug. Burke says that since the drug is illegal at the federal level, the governor has put together a task force to discuss how to cope with state regulations.
One issue that has become a concern is how to dispose of exhausted plants.
“The landlord cannot just pick it up and throw it in the trash, because it’s a controlled substance and can’t get into the hands of minors,” Burke says.
Colorado expects to roll out a list of plans and regulations sometime this summer, Burke says.
