How a new rental addendum may lead to a residential cannabis ban in California
A “smoking policy addendum,” added within many renter’s leases in California, appears to affect a lot more than just the ability to smoke cannabis. It actually reads as a complete ban on using cannabis in all forms within a house or apartment rental.
The Anti-Cannabis Addendum
Three weeks after the passage of Proposition 64 in 2017, the California Apartment Association updated their lease agreement to “address California’s legalization of recreational marijuana use.” One of these major updates was the addition of a “smoking policy addendum,” which is actually much broader and more all-encompassing than the name implies. It’s really more of an anti-cannabis and tobacco addendum, that could care less about incense, cooking and other sources of smoke. The vast majority of the form is worded to only mention tobacco, even mentioning “E-cigarette/Vaping” as a prohibited class of behavior. Things get interesting when one looks at the fine print at the bottom of the page, which clarifies that the addendum “does not authorize the use of marijuana in any form on the premises.”
That is where the anti-smoking policy makes it clear what it really is about: preventing patients from having safe access to medical cannabis in their own homes and squelching newly created adult-use rights. While the CAA used the nuclear option of prohibiting “the use of marijuana in any form,” they aren’t similarly banning the use of nicotine “in any form.” The addendum doesn’t mention a prohibition on chewing tobacco or nicotine patches; yet cannabis tinctures and transdermal patches, analogically the same thing as a chewing tobacco and nicotine patches, are a violation of the lease.
As this new smoking policy was clearly much broader than that it first seemed given that a violation might result in an eviction, Cannabis Now contacted Bay Area cannabis lawyer, Lauren Vazquez. Since the addendum did not specify if the standard 30-day eviction would apply, that was a big concern to clear up. Vazquez seemed confident that it would “be 30 days and normal eviction procedures would apply.”
Another concern was the over-broadness of the addendum. For example, could a cannabis patient who only ever used topicals get evicted, and then be forced to pay for any damages which the landlord claimed was due to the cannabis smoking they were not doing? Vazquez was somewhat hopeful, saying that “yes they could evict you for it, and they could make you pay. But they would have to prove damage and unless they have photos from before you moved in it would be hard to prove.”
She had some advice for the landlords, saying “this could be ripe for a lawsuit if a landlord tries to evict for any use other than smoking.” So while landlords do have the power to evict someone for non-smoked forms of cannabis, it is unlikely they would try, especially under the threat of a lawsuit.
What Does This Mean for Medical Marijuana Patients Renting?
This means that anyone privately renting from a landlord or property management company using this addendum from the CAA is going to have to sign the addendum or find somewhere else to live. There is no special exception for cannabis patients, and there never has been any protection in housing for California medical patients. Arguably fewer protections exist for recreation users.
Assemblymember Jim Wood authored Assembly Bill 62 last session, which would have banned people living in public housing from smoking or vaping cannabis. Thankfully, AB 62 died in a committee hearing before reaching a final vote, but that doesn’t mean Wood won’t try again this session. As awful as not being able to smoke at home is for any cannabis user, it is much worse for those who are living in public housing, who are more likely to be older or lower income, lacking a car or somewhere else to go off-site. While they could use cannabis in non-smoked forms, many users still prefer smoking due to the fast delivery of cannabinoids into the body. Furthermore, as we saw with the CAA’s “smoking policy addendum” depending on how the bill is worded, it could be much more restrictive than it first appears.
California is certainly not alone in grappling with big issues around cannabis patients being denied housing. In Pennsylvania, a woman is being denied her Section 8 housing because she is a medical cannabis patient. In Maine, one neighbor is suing the cannabis patient downstairs because the cannabis smoke aggravates her rheumatoid arthritis. As cannabis legalization looms in Canada, there is also talk about what landlords can legally ban in their properties.
TELL US, do you think rentals should be able to ban the use of cannabis?
By Cannabis Now