On December 15, 2016, the recreational use of marijuana became legal in the Commonwealth of Massachusetts, after voters approved Ballot Question 4 The Regulation and Taxation of Marijuana Act. Driving down the Pike this morning on my way to Boston Housing Court, I did not see any “Cheech and Chong” scenes in vehicles. That said, the new law will no doubt affect the legal relationship between landlords and tenants and will likely result in disputes as to what can and cannot be done with respect to cultivating, growing and using marijuana in and around rental property.
What is Legal and Illegal Generally?
- Adults (21 or over) may possess up to 10 ounces of marijuana in their primary residence. A person may cultivate up to 6 marijuana plants for personal use, and up to 12 plants per household are allowed if more than one adult lives on the premises. Marijuana growing at home must be done discreetly and securely. Marijuana plants cannot be plainly visible from the street or any public area and must be cultivated someplace where there is a security device.
- Outside the home, adults 21 or over can possess up to 1 ounce of marijuana.
- Recreational marijuana cannot be sold in any form in Massachusetts without a retail license. A Cannabis Control Commission, yet to be named, will be responsible for issuing retail licenses.
- Marijuana cannot be possessed, purchased, grown or used by anyone under age 21 (unless they have a valid medical marijuana permit), and it’s against the law to give away marijuana to someone under 21.
- Using marijuana is illegal in any public place. You can’t, for example, walk down the street smoking a joint the way you would a cigarette. It’s also illegal to use marijuana in any place where tobacco is banned.
- Possession of any amount of marijuana remains illegal on school grounds, public housing, and government buildings.
Can Tenants Use or Cultivate Marijuana In Rental Property?
The key provision in the Act provides that it is illegal to:
“prevent a person from prohibiting or otherwise regulating the consumption, display, production, processing, manufacture or sale of marijuana and marijuana accessories on or in property the person owns, occupies or manages, except that a lease agreement shall not prohibit a tenant from consuming marijuana by means other than smoking on or in property in which the tenant resides unless failing to do so would cause the landlord to violate a federal law or regulation.”
As I read the new law, landlords have the ability through a lease agreement to regulate the smoking and cultivation of marijuana in rental property, except that landlords cannot prohibit the consumption of marijuana edibles or any other form of non-smoking consumption.
New Marijuana Lease Addendums Should Be Implemented
Now, here’s the rub. Most current leases in effect right now do not have specific provisions dealing with marijuana use. Some leases have anti-smoking and nuisance provisions, which would arguably prohibit pot smoking, but it’s not clear whether that would apply to the discreet growing of marijuana. Under general contract law, there must be some additional legal consideration to significantly amend a lease agreement and curtail a tenant’s rights. Thus, there is a question as to whether existing lease provision would apply to the tenant use/growing of marijuana. Courts will have to decide these issues going forward. I would imagine that most landlords would not want to take on the risk of hundreds of tenants each growing 12 marijuana plants in their apartments. As I explain below, it is incumbent upon landlords to get marijuana policies and lease riders in place now and going forward on new leases.
Practice Pointer: If you are a landlord and you want to have a strict marijuana use policy, you must act now and have your tenants sign a new lease addendum for recreational marijuana use. The addendum should, among other things, provide that smoking and growing of marijuana is strictly prohibited, while consumption of edibles is allowed, provided that it does not create a nuisance. There should also be indemnification language in the rider as well. My office can assist you with drafting a marijuana lease rider.
Marijuana consumption technology has come a long way since your college dorm room. I’ve been told that many serious users use vaping technology which heats and vaporizes buds, giving the user a much cleaner and less toxic high. A question which may come up is whether vaping is equivalent to smoking. Not being an expert on marijuana technology, I will leave that to the experts. My brief Google research says that vaping does still produce a slight odor of marijuana but far less than traditional smoking of a joint or pipe. I think it will all depend on how vaping impacts neighbors in an apartment building.
If a tenant begins growing and cultivating up to 12 marijuana plants as allowed under the new law, how will that affect utility and water usage? Under the State Sanitary Code, the landlord is obligated to pay for electricity and gas in each dwelling unit unless it is separately metered and there is a written document that provides for payment by the tenant. See 105 Code Mass. Regs. § 410.354. Concerning billing a tenant for water use, under the Tenant Metering Law, a landlord can only bill the tenant water usage if he satisfies many onerous requirements such as getting local certification and installing low flow faucets and shower heads. If you allow growing of marijuana in your rental property, make sure that the tenant does not hose you with a huge water/electric bill. Again, your new marijuana lease rider should address this issue, among other items.
If you need assistance with creating a new Massachusetts Marijuana Lease Addendum/Rider, please contact me at firstname.lastname@example.org or 508-620-5352, and we would be happy to create a customized one for you!