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Can I keep my renters from using, possessing or growing pot?

  • Author: Scott Woodham
  • Updated: September 28, 2016
  • Published February 13, 2015

Philip wonders if legalized cannabis in Alaska will affect him and his tenants: "I own rental property at which my lessor may currently smoke (tobacco) indoors. Can I prohibit the renter from growing, possessing or using (cannabis) if they choose to rent from me?"

Cynthia Franklin, director of Alaska's Alcoholic Beverage Control Board, the agency currently in charge of the rulemaking process initiated by voters with Ballot Measure 2, said by email she believes that yes, state law allows for private property owners to set the rules regarding herb on their own property.

The initiative-created statute Franklin identified as relevant is AS 17.38.120(d), which reads, "Nothing in this chapter (AS 17.38) shall prohibit a person, employer, school, hospital, recreation or youth center, correction facility, corporation or any other entity who occupies, owns or controls private property from prohibiting or otherwise regulating the possession, consumption, use, display, transfer, distribution, sale, transportation, or growing of marijuana on or in that property."

Read more Highly Informed: Seeking answers to Alaska's cannabis questions

Franklin said, "That means that a landlord could write a prohibition of marijuana in the lease. If a tenant had marijuana in any of these capacities on the property, they would be violating the lease in the same way as if they had a pet on a property where the lease prohibited pets, and would be subject to eviction and perhaps fines to restore the property to its pre-lease condition, depending on the specific terms of the lease or rental agreement."

According to the Alaska Department of Law, any rules in a lease or rental agreement must be reasonable and clearly defined, and must apply to all tenants equally. So if a landlord would like to include a clause like that in a lease, there's no stopping him or her. And if a tenant signs such an agreement, the law seems unlikely to side with the tenant in a dispute.

However, whether such a clause is enforceable would be less certain. Franklin said that, in her opinion, landlords will be able to ban pot independently and it will be enforceable. "But we won't know for sure until someone sues," she said.

Kevin Brady, an Anchorage attorney familiar with landlord-tenant law, disagrees. In a phone interview, he honed in on a key question: "Unless a behavior produces an observable effect on the property, how would it be enforceable?"

To guess at how a rental dispute over cannabis may resolve, there are a variety of complications to consider. I'm limiting my discussion to residential property, not commercial. Brady noted that commercial tenants typically have a different legal standing from residential tenants.

None of the following is the last word and should not count as legal advice, simply a discussion of possibilities. Tenants and landlords should consult an attorney if they wonder about how their rights and responsibilities work in the real world, not the hypothetical universe of this column.

A funny looking houseplant?

So first, let's tackle the cultivation element of Philip's question.

The Alaska Uniform Residential Landlord & Tenant Act holds that a landlord's reasonable, clearly defined and equally applied rules may be enforced if their purpose is to promote the convenience, safety, health or welfare of the tenants; preserve the landlord's property from abuse; or make a fair distribution of services and facilities. But that isn't always referring to rules included in a lease agreement (things like signs against cars idling near building ventilation intakes and so on). Leases are different. Landlords can write just about anything into a lease agreement, and tenants may or may not sign it. But writing those terms down and enforcing them are two different things.

Because a home garden could conceivably lead to nuisances or property damage that a landlord wouldn't want, clauses describing their acceptable construction or design would seem reasonable to include in a lease agreement -- for instance, requiring adequate odor control, or proper heat mitigation and safe water or electrical systems. An outright ban on legal cannabis cultivation would not seem reasonable to me unless houseplants or other kinds of plants, like tomatoes or kitchen herbs, are also prohibited on the property, indoor or out.

Ballot Measure 2's approval introduced a section to state law that applies to personal cultivation (AS 17.38.030). It requires that cultivation "may only occur on property lawfully in possession of the cultivator, or with the consent of the person in lawful possession of the property." I interpret the effect of that as an invitation for people negotiating the transfer of possession or use of property between two parties to specify or set conditions for such consent. That seems reasonable and enforceable.

However, cultivation aside, prohibiting the simple possession of state-legal amounts of marijuana on a property does not seem enforceable because possession itself has no real consequences to a property. Having marijuana in an apartment is not the same as having a pet. Cannabis does not claw at the door or crash through vertical blinds. Certain kinds of cannabis may smell like skunk, aged cheese or pine-scented ammonia, but a plant won't spray the walls like a cat might. For that matter, you can't keep pets in airtight jars.

For tenants' own good?

The health or welfare part of the law may be a way for some landlords to try to ban all use of cannabis in residential properties, it seems to me, but that seems unreasonable unless alcohol or tobacco aren't similarly prohibited. In Philip's case, a landlord who allows cigarette smoking wouldn't seem to have much standing to ban marijuana smoking. It follows that the same reasoning would go for alcohol consumption.

If the grounds for a landlord's indoor smoking bans rest on avoiding damage to the property, it may not apply to all situations involving cannabis. For a variety of reasons, chief among them frequency of use and lack of wall-yellowing nicotine, cannabis smoke does not linger the way tobacco smoke does. And if a ban is instituted to promote the health and welfare of other tenants who may be negatively impacted by cannabis smoke or vapors, preventing problems may not require an outright ban in the lease. There are also municipal nuisance ordinances that would likely apply to a situation like that, and others, regardless of a lease agreement.

Also, there are ways besides smoking to consume cannabis. Vaporization, either of cured flowers or any of the various concentrates, doesn't involve combustion. Eating cookies also doesn't produce smoke. So even if a landlord has a broad prohibitions against smoking, it may not apply to all forms of cannabis use.

And even if there are prohibitions against smoking indoors or in common areas, I don't think they'd apply to smoking on a porch or deck not shared by multiple units. It seems like people could still step outside on a private deck, much as they do now with cigarettes.

Brady said that landlords who may want to ban pot on their properties "might have to endure, for lack of a better word," some amount of discreet behavior involving cannabis that doesn't have undesirable consequences to the property.

A property owner who would like to make a rule against smoking cannabis may be risking a tenant who abides by that agreement but still vaporizes cannabis or consumes edible products, neither of which involve smoke from combustion and have essentially no observable effect on a property.

Brady said that one avenue a landlord could use for enforcing a blanket prohibition on cannabis at a residential property is a "no criminal law violation" clause. Because federal law still treats the plant and its produce as illegal, Brady said in his opinion a clause like that might be enforceable for eviction purposes. "Realistically," he said, "I don't see it playing out. It's unlikely that simple possession would be a matter for federal court."

Typically, federal charges for marijuana involve extremely large amounts intended for sale, not personal use.

Hippies must use side door

If landlords out there are really serious about keeping cannabis users out of their properties, they might have to revise current leases to cover situations that aren't accounted for. Landlords are free to put anything in their leases they want. Tenants are free not to sign. And just putting something in a lease doesn't mean it's enforceable. Decades of prohibition have trained many cannabis enthusiasts to be canny concealers of their behavior and to be comfortable risking negative consequences, many of which -- until Feb. 24 -- involve criminal charges that will seem much worse compared to trying to find a new place to rent.

A rental agreement revision process might also risk losing current or future tenants who don't want a nanny for a landlord, whether or not they use cannabis. It might also surprise landlords which of their current tenants won't be willing to give up responsibly using, possessing or growing cannabis in their homes, even if they rent.

If a landlord really is dead-set on keeping the pot out of their properties, there may be a simple fix. "Pot smoker" is not a class protected from discrimination in Alaska. Neither is "stoner" or "Long Haired Country Boy."

Just including language like that in the classified ad for tenants would pretty well make sure undesirables don't apply. But I don't think that'll happen. First of all, if drug use survey data are at all accurate, Alaska's high per-capita use rate and strong pride in personal privacy might mean that unit goes unrented for a while, maybe a long while. Also, sexuality isn't a protected class either, and there aren't any rental advertisements I've seen that say "no gays." And thank goodness for that.

So, the answer, legalized cannabis or not, is that landlords should still feel free to be clear in spelling out the behavior they expect of the people who rent or lease property from them. But they should be aware that depending on their specific situation, a prohibition on cannabis may be enforceable, and it may be even less desirable than grudgingly accepting some discreet, nondamaging use of herb.

And tenants should be careful to only rent from people whose rules they would like to live under. Signing a lease means abiding by reasonable rules or risking a hassle.

Have a question about marijuana news or culture in Alaska? Send it to cannabis-north@alaskadispatch.com with "Highly Informed" in the subject line.

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