A licensee recently discovered that a tenant is legally growing marijuana at the premises and posed the following questions: does the growing or cultivation cause harm to the property? If a landlord disallows it in a lease, is he/she violating Fair Housing Laws by not allowing a tenant who is in the need to medically use marijuana? Before addressing these issues, it is important to know:
When is growing marijuana legal in Nevada? In order to legally be authorized to grow marijuana plants at a person’s residence, a person must fall within one of the following four categories:
- the tenant must hold the registry identification card or his or her designated primary caregiver, if any, was cultivating, growing or producing marijuana in accordance with this chapter on or before July 1, 2013;
- all the medical marijuana dispensaries in the county of residence of the person who holds the registry identification card or his or her designated primary caregiver, if any, close or are unable to supply the quantity or strain of marijuana necessary for the medical use of the person to treat his or her specific medical condition;
- because of illness or lack of transportation, the person who holds the registry identification card and his or her designated primary caregiver, if any, are unable reasonably to travel to a medical marijuana dispensary; or,
- no medical marijuana dispensary was operating within 25 miles of the residence of the person who holds the registry identification card at the time the person first applied for his or her registry identification card.
Any person growing marijuana who does not fall within these criteria is engaged in an illegal activity.
Dangers of indoor growing activity. Assuming these conditions are met, then this activity would be permitted under state law. There are numerous articles that identify the dangers of growing pot indoors. Primarily, the dangers relate to irrigation and water damage to the home which leads to the mold contamination and resulting health concerns. However, there doesn’t appear to be any documentation that discusses damage to the property if it is grown outdoors and does not violate the statute.
Is it permissible to prohibit this activity? Yes. A landlord may prohibit smoking in general and a tenant would be in violation of the lease agreement whether smoking cigarettes, cigars or marijuana on the premises. If a landlord were concerned about the possible violation of anti-discrimination laws, he could prohibit growing but permit forms of marijuana that could be ingested rather than smoked. Given the number of dispensaries which have commenced in Clark County, these items should be readily available. A recent Washington Post article quoted the Attorney General of the District of Columbia as stating that despite DC’s medical marijuana statute (which is similar to that of Nevada) landlords can deny tenants the right to grow or possess marijuana. In an article entitled “Marijuana laws affecting Realtors“, an attorney with the California Association of Realtor’s Member Legal Services reached the same conclusion. Accordingly, it does not appear that such action would violate any fair housing laws.
An interesting result was reached in the matter of Casias v. Wal Mart Stores, Inc. in the context of employment laws. The Plaintiff sued Walmart after he was terminated. The employee was injured on the job and pursuant to store policy was required to take a drug test which was positive for marijuana. The Plaintiff explained that he had a registry card and was permitted to legally use medical marijuana under Michigan law. He claimed he was never under the influence at work and the use had nothing to do with the accident. The Court dismissed the lawsuit on the basis that the state medical marijuana laws do not regulate private employment actions. Rather, they were intended to prevent criminal prosecution of persons. The Appeals Court, in upholding the lower court’s action, noted that while Michigan’s employment statutes clearly provided an employer cannot discriminate against an individual with respect to employment or discriminate because of a disability, the Michigan Medical Marijuana Act had not such language and, therefore, did not confer this obligation upon employers. Similarly, this type of language is absent from Nevada’s medical marijuana statute and it appears likely the court would reach a similar result regarding housing laws.
How can tenants be prohibited from growing marijuana? In a state that allows either medical or recreational marijuana to be grown in private residences, a landlord can prohibit renters from growing pot by including the language from NRS 453A in the lease. If the issue arises after the lease has been executed without such a clause, the landlord would likely need to rely on an anti-drug or crime language that may have been included in the lease. Remember, although the growing may comply with state law, it is prohibited by federal law. The landlord would be required to send the written notice of the breach of the lease agreement citing the appropriate clause. If the renter continues to grow plants after receiving the written notice, the landlord may attempt to evict the tenant. However, if no such clause exists, the landlord may have difficulty preventing renters from growing marijuana during the term of the lease (assuming they otherwise meet the requirements of NRS 453A).
Aside from any moral objections, are there other concerns a landlord should have? Yes, regardless of the landlord’s opinion about whether the use of marijuana in accordance with NRS 453A is appropriate; there remains an interesting insurance issue. In general, insurance policies will not cover damages related to illegal activities in the premises. Since the use of marijuana remains in violation of federal law, it is unclear if an insurance company will agree to coverage under such circumstances.
PRACTICE POINTER: In these types of cases it is important to recommend the landlord seek the assistance of counsel. A tenant may be permitted to legally grow marijuana but Landlords certainly should be skeptical to ensure the law is not being violated at the premises.