Marijuana Law for California Residential Landlords

Proposition 64 legalized recreational use of mariju

ana in California. Under the new law, (codified

in California Health and Safety Code

§

11362 et seq.), people 21 years of age and older ma

y

possess, process, transport, purchase, obtain or gi

ve away (without compensation) up to 28.5

grams of non-concentrated cannabis and up to 8 gram

s of concentrated cannabis and possess,

plant, cultivate, harvest, dry or process up to 6 l

iving plants. Under the law, cannabis (including

the living plants), may be stored within a person’s

private residence, or on the private grounds of

a private residence, in a locked space which is not

visible from a public place by normal unaided

vision. Private residences include single family re

sidences as well as multi-family properties.

Additional limitations apply as specified within th

e law.

In response to the passage of Proposition 64, sever

al cities are adopting and/or considering

local certain bans on recreational marijuana. Propo

sition 64 allows cities to pass ordinances

banning marijuana businesses from operating in the

city and banning outdoor cultivation of

marijuana (even for personal use).

Marijuana possession, distribution, and use, regard

less of purpose, remains illegal under

Federal law (Controlled Substances Act (U.S.C. titl

e 21).

While the full impact this new law will have on lan

dlords and residential properties remains to be

seen, marijuana use in residential properties will

increase, which will create challenges for

landlords. In response, landlords may choose to pr

ohibit marijuana smoking and cultivation.

However, landlords who choose to prohibit marijuana

smoking and cultivation should expect to

continue to encounter issues with residents claimin

g they need to smoke or cultivate marijuana

for medical purposes, which raises issues relative

to disability-related accommodations.

Proposition 64 did not change California’s medical

marijuana laws. (For information about

reasonable accommodation requests related to medica

l marijuana, contact Kimball, Tirey & St.

John’s Fair Housing Department at

KTSFairHousing@kts-law.com

.)

Under Civil Code § 1940.10, tenants in single famil

y homes and duplexes have the right to

engage in “personal agriculture” in portable contai

ners approved by the landlord in the tenant’s

“private area”, if certain conditions are met. Simi

larly, homeowner’s associations may not restrict

“personal agriculture” under Civil Code §4750. Howe

ver, because Civil Code §1940.10(a)(3)

specifically excludes marijuana (and any other unla

wful crops or substances), they do not

prevent landlords from prohibiting marijuana.

Action Items:

•

Properties with no-smoking provisions should revie

w their lease to ensure their

provisions will allow landlords to prohibit or cont

rol marijuana use, as well as tobacco

and e-cigarettes. (Many smoke free provisions do no

t address marijuana or e-

cigarettes).

•

Properties that do not currently prohibit smoking,

may want to consider going smoke

free, or prohibit marijuana smoking.

•

Landlords may wish to add provisions to their leas

es prohibiting marijuana plants.

For assistance with lease provisions or notices of

change of terms of tenancies to address these

issues, contact Kimball, Tirey & St. John LLP attor

ney Jamie Sternberg at

jamie.sternberg@kts-

law.com

or (619)744-0863.

•

Landlords who don’t already have procedures and po

licies to address smoking

complaints (marijuana or otherwise) should consider

creating them. For assistance,

contact Kimball, Tirey & St. John LLP attorney Alej

andra Mendez at

alejandra.mendez@kts-law.com

or (619)231-1422.

Text of Applicable Laws:

Information from the California Secretary of State

regarding Proposition 64 is available at

http://vig.cdn.sos.ca.gov/2016/general/en/pdf/text-

proposed-laws.pdf#prop64

.

The

text

of

Civil

Code

1940.10

is

available

at

http://leginfo.legislature.ca.gov/faces/codes_displ

aySection.xhtml?lawCode=CIV&sectionNum=

1940.10

.

The text of California Civil Code 4750 is available a:

http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=4750.&lawCode=CIV.

Kimball, Tirey & St. John LLP is a full service real estate law firm representing residential and commercial property owners and managers. This article is for general information purposes only. Laws may have changed since this article was published. Before acting, be sure to receive legal advice from our office. If you have questions, please contact your local KTS office. For contact information, please visit our website:www.kts-law.com. For past Legal Alerts, Questions & Answers, and Legal Articles, please consult the resource section of our website.© 2017 Kimball, Tirey and St. John LLP