Medical Marijuana

Decision Could Have Wide Impact Upon Marijuana Use By Tenants

The law on marijuana and rental housing remains clouded to say the least. And that’s no pun. This week on April 8th, the Supreme Judicial Court will consider the first of probably many cases dealing with marijuana use in rental housing. In this particular case, Boston Housing Authority v. Figgs (SJC 11532), the high court will assess whether a state housing authority may evict a subsidized tenant and terminate her federal housing benefits for the alleged possession of less than one ounce of marijuana — which is no longer a criminal offense in Massachusetts, but still a crime under federal law. With the decriminalization of small amounts of marijuana, the rollout of the medical marijuana dispensaries and the conflict with federal drug laws, this case may have wide-ranging impacts upon the relationships of landlords, tenants, housing authorities and even condominium owners and trustees over the use of marijuana, both recreationally and medicinally.

Oral arguments are available via live stream here. Legal briefs and filings in the case can be found here. A final opinion and ruling is expected this summer.

This case should also put the new Medical Marijuana Law into re-focus. Landlords have been increasingly anxious about how to manage and regulate tenants’ use of medical and recreational marijuana, if at all. The law not only grants qualified patients the right to obtain medical marijuana but it also allows patients the right to grow a two-month supply of marijuana at home if they cannot get to a marijuana dispensary because they are too sick or too broke. There is a bill in the Legislature granting landlords the right to prohibit medical marijuana on rental property without fear of being sued for disability discrimination.

I’ll be monitoring this new and dynamic area of the law. It will surely be a hot topic in the next couple of years.

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100316_photo_vetstein (2)-1Richard D. Vetstein, Esq. is an experience Massachusetts landlord tenant and real estate attorney. If you are concerned or have questions about the new Medical Marijuana Law, please contact him atinfo@vetsteinlawgroup.com.

 

 

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massachusetts medical marijuanaAttorney General Strikes Down Wakefield Ban On Medical Marijuana Dispensaries

As I predicted months ago, Massachusetts towns cannot enact zoning by-laws prohibiting medical marijuana dispensaries from opening in town, as the Attorney General has just ruled in an advisory opinion involving the Town of Wakefield. In the same ruling, the Attorney General advised that towns do have the authority through its zoning powers to regulate the location, operating hours, and other zoning related aspects of these dispensaries. In a separate ruling involving the Town of Burlington, the AG ruled that towns may enact a temporary moratorium (through June 2014) on the opening of marijuana dispensaries.

The AG’s medical marijuana ruling for Wakefield can be read here. The AG’s medical marijuana ruling for Burlington can be read here.

Now it will be up to towns and cities to regulate where medical marijuana centers will be located within their borders — for example, near a hospital, in an industrial area or away from schools or residential areas.

This is the first legal ruling involving medical marijuana in the Commonwealth, and certainly won’t be the last. This hot-button issue will most definitely find its way to the courts, and I’ll be keeping you updated with any new developments.

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2011-20121I always look forward to recapping the year that was, and bringing out the crystal ball to predict the year ahead. This year, like years prior, was an active year for Massachusetts real estate law, with several important court rulings, legislative developments, and emerging legal trends. The year 2013 is expected to be just as busy.

Eaton v. Fannie Mae and Fannie Mae v. Hendricks Foreclosure Rulings

Another year, another pair of huge foreclosure rulings by the Massachusetts Supreme Judicial Court. On June 22, 2012, in Eaton v. Federal Nat’l Mortgage Ass’n, the SJC held that lenders must establish they hold both the promissory note and the mortgage in order to lawfully foreclose. This posed major problem for the vast majority of conventional mortgages which lenders securitized and sold off on the secondary mortgage market, thereby splitting the note and mortgage among various securitized trusts and mortgage servicers. Responding to pleas from the real estate bar, the SJC declined to apply its ruling retroactively, thereby averting the Apocalyptic scenario where thousands of foreclosure titles would have been called into question. My prior post on the Eaton ruling can be read here.

The FNMA v. Hendricks case had the potential to change Massachusetts foreclosure practice, but the SJC rejected the challenge. The court upheld the validity of the long-standing Massachusetts statutory form foreclosure affidavit which provided that the foreclosing lender has complied with the foreclosure laws,rejecting the borrower’s claim that the affidavit was essentially robo-signed.

New Medical Marijuana Law Has Landlords, Municipalities Smoking Mad

Burned up Massachusetts landlords and anti-pot local pols are still fuming with concern over the state’s newly passed but hazy medicinal marijuana law. The law — rolling out Jan. 1 — mandates the opening of at least 35 medicinal marijuana dispensaries, and grants users the right to grow a two-month supply of marijuana at home if they cannot get to a dispensary because they are too sick or too broke. The new law also potentially opens landlords up to federal prosecution for violating the federal controlled substances laws. Many towns and cities are contemplating banning dispensaries or passing zoning by-laws regulating their locations. My prior post on the new marijuana law can be read here.

539wApartment Rental Occupancy Limits

In 2013, the SJC will consider the Worcester College Hill case which will significantly impact landlords renting apartments to students and in other multi-family situations. The question is whether renting to 4 or more unrelated persons in one apartment unit requires a special “lodging house” license which would, in most cases, make it cost-prohibitive to rent to more than 3 unrelated persons. (Lodging houses require a built-in fire sprinkler system, for example). The SJC will hear oral arguments in the case on January 7, 2013.

Foreclosure Prevention Act Passed

On August 3, 2012, Governor Deval Patrick signed the Foreclosure Prevention Act. The new law requires that lenders offer loan modifications on certain mortgage loans before foreclosing. Unfortunately, the law did not fix the problem with existing title defects resulting from the U.S. Bank v. Ibanez case in 2010. (Sen. Moore’s office plans to re-introduce Senate Bill 830 in 2013). My prior post on the new law can be read here.

SJC To Consider Realtor’s Liability for Erroneous MLS Info

Sometime in 2013, the SJC will issue a very important opinion in the controversial DeWolfe v. Hingham Centre Ltd. disclosure case where a Realtor was held liable for failing to verify the zoning of a listing on the Multiple Listing Service. The Court will also consider whether the exculpatory clause found in the Greater Boston Real Estate Board’s standard form purchase and sale agreement legally prohibits a buyer’s misrepresentation claim against the real estate agent. The Massachusetts Association of Realtors and the Greater Boston Real Estate Board have filed friend of the court briefs urging the SJC to limit Realtors’ disclosure obligations in the case. My prior post on the case can be read here.

Good Faith Estimate, TIL, and HUD-1 Settlement Statement To Change Dramatically

In the second major overhaul of closing disclosures in three years, the Consumer Financial Protection Bureau will be rolling out in 2013 a new “Lending Estimate” and “Closing Estimate” which will replace the current Good Faith Estimate, Truth in Lending Disclosure, and HUD-1 Settlement Statement. The changes are part of the Dodd-Frank Act, and has the lending and title insurance industries scrambling to figure out who should be ultimately responsible for the accuracy of closing fees and other logistics in delivering these new disclosures. My prior posts on the topic can be read here.

mw_1011_FISCAL_CLIFF_620x350Fiscal Cliff Anxiety Syndrome

The Year In Review would not be complete without mention of the dreaded Fiscal Cliff. As of this writing, President Obama and the House (which even rejected its own Speaker Boehner’s last proposal) have been unable to work out a deal to resolve the more than $500 billion in tax increases and across-the-board spending cuts scheduled to take effect after Jan. 1, 2013. If there is no deal, and the country goes over the fiscal cliff, the consensus is that it will have quite a negative effect on the economy and the real estate market in particular.

Upcoming Event! On January 8, 2013, we are sponsoring a breakfast seminar with veteran real estate journalist Scott Van Voorhis, who will offer his predictions on 2013. Please email me to sign up. The Facebook Event invitation is here. The venue is Avita in Needham, 880 Greendale Ave., Needham, MA.

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Richard D. Vetstein is an experienced Massachusetts real estate attorney who hopes the White House and Congress can get their acts together and pass a compromise bill to avoid the Fiscal Cliff.

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Breaking: Attorney General Strikes Down Wakefield Ban on Dispensary

Hazy Legal Landscape Providing Angst to Town Planners

Massachusetts voters overwhelmingly approved the Medical Marijuana Ballot Initiative/Question 3 (click for full text), opening the door to the opening of at least 35 medical marijuana dispensaries throughout the state in 2013. But, the bigger question is whether the same voters and town leaders will support the opening of dispensaries on their own street corners and downtown areas. Many towns and cities are already gearing up for a fight over the locations, as one marijuana law firm is already scheduling seminars on how to open up dispensaries in Framingham. In litigious Massachusetts, we can certainly expect aggrieved abutters to challenge the opening of what they call “pot shops” next to their residences and businesses. The actual opening of marijuana dispensaries could be years away due to litigation and opposition.

Up To 35 Marijuana Dispensaries in 2013

The ballot law authorizes the opening of up to 35 dispensaries in 2013, and the Department of Public Health retains authority to open more later if demand is there. The law requires that at least one dispensary must be located in each of Massachusetts’ 14 counties, but caps each county at no more than 5 locations. The law seeks an accelerated rollout of dispensaries. Treatment centers can file applications as early as January 1, 2013, and open up to 120 days later, subject to the rollout of regulations by the state Department of Public Health.

Possible Target Locations

Based on size, county seat, and demographics, likely locations for marijuana dispensaries in Eastern Massachusetts would include: ((This is my own opinion/analysis.))

  • Boston, Roxbury/Dorchester/Mattapan, South Boston (Suffolk County)
  • Cambridge, Lowell, Framingham, Marlborough, Waltham, Woburn (Middlesex County) ((The location of dispensaries in Middlesex county — Massachusetts’ most populous county — will be a huge battle.))
  • Lawrence, Salem, Peabody, Lynn (Essex County)
  • Dedham, Quincy, Brookline, Franklin (Norfolk County)
  • Brockton, Plymouth, Middleboro (Plymouth County)
  • Taunton, New Bedford (Bristol County)
  • Worcester (Worcester County)

A Smoky Legal Landscape

The ballot provision, however, is very murky as to how cities and towns are supposed to handle the potential influx of dispensaries. This is causing town leaders to scramble for legal guidance as to whether they should either attempt to block locations wholesale or enact special zoning districts regulating the placement of dispensaries.

As for any attempt to block the opening of marijuana centers, the question will have to be answered by the courts as the law is silent as to whether municipalities have this power. The legal issues surrounding municipal zoning and siting of medical marijuana dispensaries will likely follow similar cases involving methadone clinics, alcohol treatment centers/sober houses and even adult entertainment venues — all uses which are legal, yet subject to reasonable zoning governance. Additionally, treatment centers could seek protection from the American’s With Disabilities Act and other disability laws which protect cancer, HIV, glaucoma and other qualified patients who are entitled to receive medical marijuana.

I am of the opinion that a municipality cannot enact an ordinance or by-law which will block a marijuana dispensary from opening in town as long as the dispensary has complied with all DPH regulations. The town, however, can utilize its zoning powers to regulate where in town such a dispensary can be located, so long as the town does not enact illegal “spot zoning” in so doing.

While medical marijuana may have passed fairly easily on Election Day, it will probably be some time before Massachusetts sorts out all the legal issues as to where these dispensaries should go.

I am going to keep this post updated with news articles and posts about the new law and reaction to it, below.

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Richard D. Vetstein, Esq. is an experience Massachusetts zoning and real estate attorney. If you are concerned or have questions about the new Medical Marijuana Law, please contact him at info@vetsteinlawgroup.com.

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Concern Over 60 Day Supply Provision & Federal Ban On Pot

Burned up Massachusetts landlords are fuming with concern over the state’s newly passed but hazy medicinal marijuana law. The law — rolling out Jan. 1 — grants medical marijuana users the right to grow a two-month supply of weed at home if they cannot get to a marijuana dispensary because they are too sick or too broke. The new law also potentially opens landlords up to federal prosecution for violating the federal controlled substances laws.

Skip Schloming, executive director of the state’s Small Property Owners Association, expressed deep concern about the 60-day supply provision:

“You could have as many as 24 plants that are 6 feet tall,” Schloming told the Herald. “And that could cause all sorts of property damage, from water damage, to mold and humidity, to wiring issues that could cause a fire. … This has the potential to be a disaster.”

The SPOA called for a 6 month delay in implementing the law.

I hate to be a “buzz kill” for medical marijuana users, but I believe the landlords have a legitimate gripe. In the landlord-tenant context, landlords own the property and remain primarily responsible for what goes on in their apartment buildings. I’m no weed expert, but imagine a small studio apartment loaded with a veritable jungle of pot plants — a prospect which would frighten any residential landlord for a number of reasons.

First, a medical marijuana grower could be targeted for burglarization. If they are truly sick and broke enough to qualify as home growers, then they would be equally vulnerable to pot bandits stealing their stash.

Second, maintaining marijuana cultivation requires specialized equipment not necessarily compatible with close-knit apartment living. I did some research, and found this website dedicated to hydroponic growing equipment. Growing marijuana plants is fairly sophisticated. Growers need to monitor pH and moisture levels, carbon dioxide outputs and germination of seeds. Failure of this equipment could conceivably cause mold, mildew and other damage to interior units.

Bay State landlords are also concerned about running afoul of federal drug laws as marijuana remains a federally prohibited controlled substance. Landlords are begging Beacon Hill lawmakers to give them the right to refuse to rent to tenants who grow pot for medical use over fears their property could be seized. As reported in the Boston Herald, commercial and residential landlords are right to worry, drug forfeiture attorneys say, because landlords can be charged as conspirators if their tenants are targeted by the feds.

No matter landlords’ concerns, medical marijuana is here to stay in Massachusetts. It will be up to the state Department of Public Health — the same agency rocked by the highly publicized state crime lab fiasco — to enact sensible rules and regulations governing medical marijuana. Let’s hope that the DPH considers the practicalities and logistics for marijuana growing in tight-knit apartment buildings. Strict rules on home growing eligibility are a must. Same for the approval of safe, tested growing equipment. Immunizing landlords from liability for medical marijuana growing or use by tenants would be another good idea.

We will see how it all plays out on Beacon Hill…

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Richard D. Vetstein, Esq. is a Massachusetts real estate attorney who handles landlord-tenant matters and evictions throughout the state. He can be reached at info@vetsteinlawgroup.com.

 

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