Is That Oregano in Your Tenant’s Garden?

by Karina Gafford

At the REALTORS® Conference in New Orleans this November, the National Association of Realtors discussed the liability facing landlords when tenants commit potentially illegal acts in their rental properties. The hot topic of the day? Marijuana. 

Just a few years ago, a prospective tenant who had toured our rental knowingly suggested that the "lovely oregano" growing in our soon-to-be-vacating tenant’s yard meant that we were 420 friendly. As this home was in a state that had not yet legalized marijuana, we were more than a little unnerved. Scanning our lease, we couldn’t find anything that specifically stated the tenant could not grow marijuana in the backyard. As a military family, our rentals are definitely not 420 friendly and we had no desire for any commander to ever have an opportunity to misconstrue that fact, but we were unsure how to proceed with our current tenant. If the prospective tenant—or anyone else for that matter—reported our property as one that possessed marijuana plants, would we be liable for the illegal substance, or were our tenants liable?

But Weed is Legal in My Rental Property’s State, So Why Should I Care?

Now, if you live in a state that has made the use of marijuana legal, you may think there is no need for concern. Not so. Earlier this year in Fresno, California, home to the Fresno National Guard, a tenant and an absentee landlord were both fined a total of $30,000 for the presence of marijuana plants on the property. The city supervisors who fined the tenant and landlord initially wanted to apportion the majority of the fine to the owner-landlord, Robert Larson, as opposed to the tenant who was growing the plants on Larson’s property without his knowledge. The city supervisors stated that they would rather place the majority of a fine on a landlord, as a landlord is more likely to have deeper pockets. 

As most military families own just one or two properties, the perspective of the city supervisors is worrisome. We’ve previously covered how military families have great access to zero down VA loans, allowing them to create wealth by leveraging the assets of others, but most military families do not have deep pockets. In the end, the city supervisors fined the tenant $27,000 and the landlord $3,000. The fine reflected a total of $1,000 per plant above the state limit.

To better understand, not only do the laws permitting a certain number of plants differ per state that has legalized the substance, but also some of those states don’t permit the substance in any form other than dried, making any plant on your property illegal. Does this mean that military landlords now have the burden of paying to send a regular inspector to their homes in Alaska and Colorado, two of the states where in home plants are permitted, to count how many plants are on the property?

To make matters worse for military landlords, even if the number of plants meets the state’s quota, it won’t meet the federal quota of zero.

Yes, that’s correct. Let’s recap the basics of high school government: federal law supersedes state law.

The NAR Senior Policy Representative Megan Booth explained that "State marijuana laws haven’t been challenged at the Supreme Court yet," which explains why they are still standing. However, she warned that the US has signed onto tough global treaties mandating the stringent control of marijuana. These treaties may force pressure on the US to better control the substance, making the permission of marijuana in your rental property a risky proposition. 

Eh…I’m Not Concerned about the Supreme Court. They’re going to Give Marijuana the Okay Eventually.

You may not be concerned about the Supreme Court permitting the use of weed in your rental, but you may be more immediately concerned with either its effect on your property or on your neighbor. 

Tara Renee Burd, a landlord/tenant lawyer on Avvo, an online legal forum and directory, states that many leases ban smoking, but the clause of no smoking in a lease differs from a ban on marijuana. Burd explains that smoking is traditionally understood by the courts as smoking tobacco, and since marijuana is not a tobacco product, the clause does not apply. If your property is in one of the 23 states that now permit marijuana for medicinal purposes, such as California where many of Military By Owner’s landlords own homes, then Burd suggests that judges may favor a tenant who smokes marijuana inside your property, provided that the tenant is in possession of a prescription for the drug. 

By favoring the tenant in this case, this means that your property is now subject to the odors of marijuana. It also means that your property is subject to high humidity from the equipment used to grow the plants. Higher humidity in your property spells bad news for your walls in particular, as higher humidity can lead to the growth of mold. The growth of mold in your property not only deteriorates your property, but can also cause health problems for your tenant, leaving you open to claims of neglect of your property. Mold growth opens a world of problems for landlords. 

Unfortunately, the use of marijuana by your tenant doesn’t end with the possibility of damage to your property; it means that your neighbor is subject to the odors, too, and they may not be too happy with you. If you own a condo unit, townhouse, or duplex, then your tenant may be disturbing the quiet enjoyment of your neighbor’s property, the same quiet enjoyment that he is entitled to by law. 

This means that your prescription-toting tenant who can legally smoke his weed in your home is technically a nuisance to your neighbor; therefore, your neighbor can choose to bring a case against you for disturbing his peace at home. 

While a traditional landlord may take advantage of his proximity to both the tenant and neighbor in order to help smooth relations between the two and thus avoid any possible lawsuit, an absentee military landlord who has sworn to uphold the law of the land is in a more precarious situation. If you find yourself in such an unfortunate situation, contact a landlord-tenant lawyer immediately!   

Booth concluded by warning landlords that they should expect:

1. To include a clause specifying how marijuana can be grown and used in the property if the property resides in a state that permits its use. This could mean that tenants may be required to use a vaporizer to consume the plant instead of smoking it. It could also mean that tenants may only be permitted to grow the plants under certain conditions or in certain rooms to help contain the potential for damage to the property.

2. To include disclosures for future tenants stating how and when marijuana was used on the property. 

In case you were wondering how our story ended up, the plant in question growing in our yard was oregano. Our tenant was an avid cook. While dried oregano may look like weed; fresh oregano does not. Had we not have been stationed several states away, I would have driven over that initial afternoon to inspect, saving myself several days of concern before a family member could inspect for us. 

States That Have Legalized Marijuana: Alaska, Arizona, California, Colorado, Connecticut, DC, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington.