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The Seeds of Discontent

marijuana policy

The industry is caught in the middle of the act of social revolution.

Okay, it may not be that dramatic, but stay with us.

Owing to the nature of housing as a need, and the apartment industry’s nature as the most efficient and affordable way to provide housing to people, we are involved in the national dialogue on a range of issues; some that years ago we may not ever have expected. One such issue is the evolving and sometimes confusing situation surrounding marijuana in America, both in the states and federally.

While marijuana remains illegal under federal law according to the Controlled Substance Act (CSA), state governments are decriminalizing the drug and regulating its lawful use for medical and recreational purposes nonetheless. Both at the ballot box or in the statehouse, the legalization of marijuana is becoming more prevalent at the state level in many areas of the country.

Regardless of a property’s rules and policies against smoking in an apartment unit or at the community in general, owners must remember that some residents possess the right to use marijuana for medical reasons, according to specific state fair housing laws. Numerous states have enacted provisions that permit owners to prohibit residents who are qualifying patients from smoking marijuana on leased property. This does not, however, restrict the patient from consuming marijuana in other forms, such as edibles or vaporization. Additionally, some states have passed regulations that allow owners to restrict smoking marijuana on the property if smoking, in general, is prohibited in the lease.

Further, there are justifiable concerns and confusion regarding the home cultivation of marijuana in apartment properties. States are beginning to allow qualifying patients to grow a number of marijuana plants at home. This presents a budding problem with many facets.

Growing marijuana indoors requires a large amount of light and humidity, which may lead to health issues. Research shows that growing marijuana indoors increases the level of mold spores to ten times the amount found in outdoor samples. Such a policy may pose as a severe health hazard for residents, as exposure to mold can lead to serious upper respiratory tract problems. Cultivation also has the potential to result in increased utility cost across the community, if utilities are included in the rent.

It is important to note once more that while marijuana legalization is on the rise, it remains prohibited as a Schedule 1 drug under federal law, as listed in the CSA. The U.S. Department of Housing and Urban Development (HUD) reiterates this fact in its guidance for federally assisted properties. State lawmakers should keep affordable housing operators’ obligations in mind as they continue to adopt policy in this area. HUD released a memo in 2014 specifying that owners of federally funded properties must “deny admission to any household with a member who the owner determines is, at the time of application for admission, illegally using a controlled substance as that term is defined by the CSA” as required by the Quality Housing and Work Responsibility Act of 1998.

Additionally, in 2011, HUD also released a memo on the use of medical marijuana in federally assisted housing that states the use of marijuana for medical purposes violates federal law and that federal and state anti-discrimination laws do not require leasing offices to accommodate requests by current or prospective residents with disabilities to use medical marijuana. Specifically, HUD concluded that management may prohibit the use of medical marijuana as a reasonable accommodation because: (a) persons who are currently using illegal drugs (which include medical marijuana) are disqualified from protection under the definition of disability in the law; and (b) such a proposed accommodation is not reasonable under the Fair Housing Act (FHA) because it would constitute a fundamental alteration in the nature of the property’s operation.

Marijuana poses operational challenges for rental housing providers as additional states weigh the costs and benefits of legalization. To better assist affiliates in their advocacy, NAA has created additional resources for affiliate staff to reference should this issue arise in your area. If you become aware of any breaking policy action addressing marijuana regulation in your state, or if you have any questions or concerns on the subject, please contact Jodie Applewhite, Manager of Public Policy.