California Marijuana Laws and Tenant Rights

March 18, 2022
Tenant’s Right during tenancy - Bruce Croskey Real Estate
On November 8, 2016, California voters passed Proposition 64 by a margin of 56-44 percent. With the passage of this binding referendum, possession of up to 28.5 grams (slightly more than one ounce) of marijuana became legal for those at least 21 years old. Also, those of sufficient age are permitted to cultivate as many as six marijuana plants as long as they are retained for personal use only.

Voters in Nevada and Massachusetts also legalized recreational marijuana use on Election Day. The New York Times notes that recreational use of marijuana by those at least 21 years old is now legal for more than 20 percent of the U.S. population.

Marijuana and Housing Provider-Tenant Rights

Marijuana and Landlord-Tenant Rights - Bruce Croskey Real Estate

What are the implications of Proposition 64 for California housing provider-tenant rights?

Housing Provider’s Right to Prohibit Use

Importantly, California housing providers still have the right to forbid the use of marijuana on their property. They also have the right to prohibit the cultivation of marijuana plants. However, such prohibitions must be properly addressed in the lease agreement, just like “no pets” and “no tobacco use” clauses.

Tenant’s Right during tenancy - Bruce Croskey Real Estate

Research the Market

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To stay on top of how much you need to charge for a rental, you should do some research about the current market. Rental prices go up and down depending on things like the economy and the desirability of a neighborhood. Look into prices of rentals near or like yours, and set your prices based on that information. Also, consider the market demand for a unit like yours. Is it summer? If you have a large rental home that will fit a family, you may consider increasing the listing price of the rental, since the demand for that property will be higher during that particular season.

Tenant’s Right to Quiet Enjoyment

When leases do not prohibit marijuana use, property owners may have to deal with conflicting tenant rights when other renters complain of the smell or possible health consequences of inhaling secondhand smoke. Tenants generally have a “Right to Quiet Enjoyment” whether it is noted in a lease or not. Loud noises, bad odors, smoke, excessive dust and high temperatures are some elements which may interfere with this right.

Tenant’s Right to Quiet Enjoyment - disputes during tenancy 101 - Bruce Croskey Real Estate
At the same time, a tenant smoking pot legally may counter that he/she has a right to quiet enjoyment of marijuana.

Resolving Disputes

Resolving Disputes during tenancy - Bruce Croskey Real estate

Ideally, a housing rpovider or property manager will find practical solutions that satisfy all parties. Given the expense and uncertainty of legal action, most housing providers avoid eviction whenever possible.

Practical Solutions

If tenants have competing legal claims, a housing provider might try to resolve the issue of objectionable odors by suggesting that:

    • • The marijuana user shifts to consumption of the substance in food or through the use of a vaporizer.
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    • • The tenant use a quality air filter with sufficient air-exchange capability.
    • • The tenant closes windows when smoking marijuana.
    • • Marijuana use be confined to areas near appropriate windows or doorways that facilitate ventilation.
When the use of air filtration is a practical option, a housing provider might even consider the purchase of a filter to help resolve the issue.

Evictions and Just Cause

Resolving Disputes during tenancy - Bruce Croskey Real estate

As a final option, the conflicting rights of marijuana users and other tenants may lead to an eviction action. However, it is important that a housing provider have “just cause” when commencing an eviction. When there is a valid fixed-term lease prohibiting marijuana use, action is possible with a three-day notice to either correct a lease violation or move out.

Proposition 64 adds a class of recreational marijuana users in a state where there are also a group of medical marijuana users. The rights of medical marijuana users in light of Proposition 64 are not entirely clear, and different courts might adjudicate cases in different ways. Fair housing and anti-discrimination laws may come into play in some cases. It is advisable to consult with an attorney when tenants complain about another tenant using medical marijuana.

Lease Limitations

Since marijuana possession is still against federal law, lease provisions that prohibit all violations of state and federal laws might be used to evict a pot smoker. Also, even with the passage of Proposition 64, possession of more than one ounce remains illegal. Possession for recreational use by those under the age of 21 is also illegal.
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Given the provisions of Proposition 64, housing providers are well-advised to explicitly address marijuana use in their leases. An attorney focused on relevant areas of the law can work to draft lease clauses that are legal and enforceable. The preceding information is strictly informational and should not be construed as legal advice.


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Pittsburg is located along the southern shore of Suisun Bay in the East Bay area. Approximately 68,000 people live in this vibrant, growing community. Whether you need a real estate agent in Pittsburg, CA, or property management in 94565, look to Wolfgang Property Management. We also specialize in residential real estate investing services and Pittsburg, CA, homes for rent.

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