Own Property in D.C? Better call your lawyer!

The of Metropolitan D.C. has released a four-page memo detailing how landlords should proceed with regard to the cultivation and consumption of recreational marijuana on their properties. Most importantly, AOBA states off the bat, “we encourage members to consult an attorney for guidance on any lease modifications.”

As of Feb. 26, D.C. of up to two ounces of marijuana, the cultivation of up to six plants in the home, and the use in private homes by individuals over the age of 21. Marijuana sales and smoking in public remain illegal.

The upshot for apartment buildings, per AOBA: It’s the owner’s call and “if you do not wish to allow your tenants to consume or grow marijuana on your property, you are well within your rights.” Of course, legal pot is more complicated than that. So, culled from the AOBA letter, here’s what property owners should consider going forward.

If you allow pot smoking

According to AOBA, “it is important to consider marijuana smoking may create second-hand smoke, nuisance or medical risk concerns for your housing community.” Make certain that lease documents and policies are clear “that a tenant’s marijuana use will not be allowed to disturb other residents.” Nuisances that could violate those terms include foul odors, noxious gases, smoke, dust, loud noises, excessive light and high temperatures.

“Property owners and managers will need to either revise or adopt policies to provide tenants who have been issued a disturbance violation with the opportunity to cure their behavior as termination cases for marijuana use will become more difficult,” the memo states.

If you allow pot cultivation

Landlords could allow marijuana use and cultivation, prohibit both, or allow one or the other. Where pot growth is restricted but use is not, lease documents should make that clear.

“However,” AOBA notes, “if you decide to allow the growing of marijuana, it is important to remember that growing marijuana requires significant amounts of water, heat and humidity, which can create mold issues in properties. These requirements can also increase utility costs for property owners if the tenant does not pay individual electric and water bills.”

Conflict with federal law

D.C. may have legalized recreational marijuana, but according to federal law, it remains a regulated, generally illegal substance. The Obama administration is not challenging state (or D.C.) laws with regard to pot, but a sudden change could happen, leaving the District in “legal limbo,” according to AOBA. This raises “concerns for our industry concerning lending requirements and disclosures, subsidized housing policies, privacy rights, housing provider/tenant disputes and habitability standards.” Keep that in mind.

Non-smoking buildings

If a lease currently prohibits smoking, landlords “do not need to specifically amend it to prohibit the smoking of marijuana, unless you specified tobacco in the lease.” If a lease includes a crime- and drug-free addendum that refers to federal law, no changes to the lease will be needed to continue the prohibition on pot, as pot remains illegal under federal law.

“However,” AOBA states, “if your lease prohibits illegal drug activity, but does not specify federal law, you will need to specify the federal law if you desire to prohibit marijuana use.”

Brownies and other alternatives to smoking pot

The District has not yet adopted regulations on the purchase of marijuana and marijuana-infused products — and it may be difficult to do so thanks to the congressional budget rider that bans the expenditure of a single dollar on legalized marijuana — but, AOBA reports, “this does not prevent you from addressing the right to restrict the types of consumption that you wish to allow or prohibit on your property.”

Impact of DC Marijuana Legalization on AOBA Members