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ARCHIVE Published on: 2013-06-24
SB 420 does not directly address the rights of medical marijuana patients as tenants, and that piece of law has yet to be fleshed out in the courts. Tenants rights are governed by landlord/tenant law. In a rental situation there is a much greater likelihood of your landlord having issues with on-site marijuana cultivation as compared to possession and use alone.
Under federal law, patients have no rights and all marijuana is illegal. Fortunately, federal law enforcement has little interest in the individual patient-cultivator tenants, and the owners of their residences face little risk of asset forfeiture.
Signing a new lease
When negotiating whether you will be renting an apartment, you do not need to alert your landlord to your patient status because of your right to medical privacy (just as you would not need to alert your landlord to prescription medication). However, it is wise to ask about your neighbors and their lifestyles, so that you can get a sense of whether they are likely to be offended by the smell of smoke and whether there are children in close proximity to your prospective apartment.
Also, when examining a lease, if you see a provision requiring you to obey all state and federal law, you may want to try to change it so that it only requires compliance with state law.
Here is some unfavorable information on medical marijuana and housing. Try to be diligent about countering the stereotypes and protecting a landlord's property. See this California Apartment Association pamphlet that subtly encourages landlords not to allow tenants to use their medicine.
Discrete medical marijuana possession, use, and cultivation
Since there are only limited housing protections for patients, it is important to be discrete and a good neighbor.
- Keep your medicine and your medicating confined to one room and as private as possible. If you are concerned about odor, you can filter air out of the room with a carbon air filter.
- If smoking your medication is not possible in your room because of odor, try medicating with edibles or tinctures, or use a vaporizer.
- Cultivating indoors is safer because it avoids nosy neighbors and reduces risk of theft. However, if you do choose to cultivate indoors, make sure you take precautions to ensure that your cultivation system will not damage your apartment or the rest of the building, and that there is no risk of electrical fire or flood. If you are considering cultivating, make sure that you familiarize yourself with all relevant safety procedures, some of which can be found in specialty cannabis cultivation books.
- If you must cultivate outdoors, put up a tall fence to enclose your site and post all recommendations in plain view so they can be seen. Fewer plants attract less attention from thieves and hostile law enforcement, so grow only what you need. Compost or eliminate trash offsite. Use extra odor-control methods during harvest to avoid offending neighbors.
Conflict with your landlord over possession/cultivation of medical marijuana
Remember, because patients' rights as tenants are unresolved under housing law, everything that occurs after a negative interaction with a landlord is a negotiation. If your landlord has asked you to remove your plants, but has not yet threatened eviction, you may want to consider cultivating in an alternate location. After your landlord has reacted negatively to the presence of medicine on her/his property, you should begin your negotiation with an explanation about how you are a medical marijuana patient, and that you are legally allowed to possess/cultivate/medicate in the State of California. Inform your landlord that since possession and cultivation of medical marijuana are legal under state law, some landlords must rent to patients for the laws to have the effect intended by the voters. Try to assuage any fears your landlord might have about possible damage to apartment from use and/or cultivation of medical marijuana.
If the landlord escalates his tactics and threatens to evict you, refer to California housing law websites and legal hotlines, which will better explain your rights and discuss eviction fighting strategies. Here are several housing resources:
- San Francisco Tenants' Union,
- Housing Rights Committee of San Francisco,
- Housing Resource Center-LA,
- National Fair Housing Advocate Online,
- Tenant.Net, and
- California Housing Law Project - Tenants' Resources
You can personalize this Notice to Evict negotiation letter (.doc) and use it to educate your landlord about why she/he should not discriminate against medical marijuana patients. Unfortunately, once the landlord/tenant relationship has been damaged to the point that an eviction action has been initiated, patients often end up moving. So, remember to try to use the negotiations to win helpful concessions from the landlord, such as a 6-month extension of the lease and moving expenses.
Complaints or civil suits against your landlord
If get evicted solely because of your patient status or possession of a legal amount of medicine, you can file a complaint with the Dept. of Fair Employment and Housing (DFEH). The Fair Employment and Housing Act (FEHA) says landlords must try to reasonably accommodate tenants with disabilities who have some specific protections. Note that not all conditions may be considered disabilities under California law. If you file a complaint, ask for a full investigation to create a more complete record and go through the full complaint process, which begins when you fill out the Pre-Complaint Questionnaire and then call DFEH to schedule your interview at 1-800-233-3212. Here is a flow chart that demonstrates how the complaint progresses.
Unfortunately, because of the current state of the law, it is unlikely your FEHA Complaint will have results. You may still be able to file a civil suit for discrimintation. Write up brief summary of your case and propose it to lawyers. Note the status of your DFEH claim based on disability, and also the possibility of causes of action based on breach of contract (the lease). You will have six (6) months to file suit based on disability discrimination after you receive your Right To Sue letter from the DFEH. NOTE: Your DFEH complaint must be filed within ONE YEAR from the last act of discrimination (the eviction) or you may lose your right to file a lawsuit under the FEHA.
You can look for information on California Housing Lawyers using http://www.Martindale.com or searching the internet with terms such as "civil rights", "housing", "disability" and "lawyer" and "Your Region".
HUD, Section 8, and federally-subsidized housing
Since HUD is controlled by federal law, there are no protections for medical marijuana patients. Do not cultivate and try very hard to avoid possessing or even medicating in your apartment. If you must medicate in your apartment because of your condition, try to use edibles and vaporizers and practice sensible cannabis use. Unfortunately, HUD regulations allow a landlord to evict you for any activity related to any controlled substance, including medical marijuana. Here is a 1999 Memorandum Regarding Medical Marijuana in Public Housing written by HUD General Counsel.