What Michigan Landlords Need to Know About Pot Legalization
Cannabis proponents are rejoicing the passage of the new law in Michigan that has legalized marijuana. Details still need to be hashed out, pun intended, but it makes cannabis, in all its forms legal for personal use. The state-wide law does give municipalities the right to restrict or ban shops in their communities but not its recreational use. The days of Amsterdam-like “coffee shops” are still a ways off, but if business owners and investors have their way, it will be sooner rather than later.
The big question for landlords is, “Do I now have to allow the use of cannabis in my rentals?” Unfortunately, it’s not as cut and dry as “yes” or “no”.
Understanding the New Law
The Cannabis Act allows people to use marijuana on a recreational level. The new Michigan law, the first in the Midwest, allows folks 21 and over to use, purchase, and possess it in all of its forms. The law also allows people to grow up to 12 plants for personal use.
Though it’s a giant step forward for tokers, there are restrictive measures in place to help control how, when, and where use can take place. It will still be prohibited to use marijuana in a public place or inside a vehicle. Pot smokers will be able to possess up to 10 ounces of marijuana flowers (with any amount over 2.5 oz to be secured) in their homes and up to 15 grams of oils or concentrates. They would also be allowed to carry on their person up to 2.5 oz in unrestricted areas like schools or correctional facilities.
Another aspect you need to consider is the sale of cannabis on your properties. Medical marijuana has been legal in Michigan since 2008. That law allowed “caregivers” to sell pot to their “patients” if they had been issued a medical card allowing them to use. The cards were relatively easy to get from medical professionals for the treatment of anything from cancer to insomnia to lack of appetite. The laws controlled the number of plants a caregiver could grow and how many patients they were allowed to sell to.
Again, the sale of marijuana is still illegal on the federal level, and the Controlled Substance Act does not differentiate between recreational and medical marijuana. The new law doesn’t specifically address the sale of medical marijuana. If you’re on the fence about letting tenants sell their products, it’s best to consult an attorney for clarification.
What’s Your Current Smoking Policy?
The passage of the new state law does allow people to possess and consume marijuana in their home. If as a landlord, you already have a smoking ban on your properties, then you can ban smoking pot, as well. However, you cannot prohibit tenants from possessing marijuana, consuming edibles or applying topicals.
The state law prohibits the use of marijuana in public. But the definition of “public” is up for debate. As a landlord, you may have some leeway here. If your current smoking policy allows for smoking cigarettes on porches, patios or balconies, it will stand to reason that pot would be permitted in those areas as well. Opponents argue that a porch, for instance, can be clearly seen by neighbors or people walking past, thus making it a public space.
It’s the landlord’s prerogative to ban growing on their property. If you choose to allow it, tenants would be allowed up to 12 plants for personal use. Pot plants do produce an odor. Only growing a few plants, a grower may be able to cover up the smell, but larger growers need to ventilate and clean the air. As a property owner, your concern would be that too many plants would leave their characteristic pungent smell absorbed into the carpeting or walls by allowing growing indoors.
I Can Still Ban Vaping, Right?
The smoking laws are murky about vaping, the controversy lies in whether it is the same as smoking. Vapers, electronic cigarettes, e-cigs or whatever you call them, are battery-operated devices that mimic smoking by vaporizing oils or concentrates but (usually) without burning tobacco or marijuana. As of yet, it is not illegal to vape in areas where smoking is prohibited. Though you may have seen signage prohibiting vaping, legal enforcement is unclear. So as it stands, a landlord cannot ban vaping on their properties.
What About Public Housing?
The State of Michigan may have voted for recreational marijuana use, but it is still illegal on the federal level. The U.S. government still classifies pot as a Schedule 1 Drug — the same as cocaine, meth, and heroin.
That’s bad news for recreational users living on state university campuses or in government housing. The law is clear — no possession, no growing, no use, and of course, no distribution. Educational institutions may face losing federal funding and residents of HUD housing facilities would put their housing subsidy vouchers into jeopardy.
What About The Federal Law?
As mentioned above, marijuana is still illegal on the federal level. Since the state and municipalities are still working through the details, some landlords are concerned about what implications that may have on their rental properties. If anything should go wrong, landlords are worried about having their properties at risk. Legal experts still contend that property owners can prohibit the use of marijuana even though it has been legalized for recreational use at the state level. They say it is an option and an individual choice for owners. Time will tell. However, what precedent has shown us lately is that the feds have not been interfering with state law where recreational use has been legalized.
You own the property, so you still have some control over what you choose to allow and what you decide to ban. There are several factors you need to consider how lenient or strict you choose to be. Will allowing pot smoking increase or decrease my prospective tenant pool? How is your decision going to affect neighbors or other tenants? It may all come down to your personal acceptance of the law and the understanding of your market.
If you have any questions or concerns about how you write the lease, it’s best to seek legal advice. Remember, once they sign, your tenants have a duty to obey each clause you put forth. No matter if it concerns a pet policy or bong rips.