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Marijuana use in rental properties? You might want to consult a real estate attorney to get the skin

America is becoming a pot-friendly nation. Okay, while that may be a bit of an overstatement, it’s certainly a country that’s warming up to lighting up in more states each month. With recreational marijuana being legal in four states and the District of Columbia, and medical marijuana laws in place in 23 states today, who knows what tomorrow will bring as several others are considering bills that have to do with legalization in one form or another. Legal use of marijuana has far-reaching consequences beyond not getting handcuffed for carrying a baggie of weed—who can use marijuana and where is a question on the minds of many landlords and rental tenants, and this article in AVVO’s Naked Law Blogasked a real estate attorney for the skinny on the issue.

Property owners should be up on their own state’s marijuana laws, since nearly half of the entire U.S. allows medical marijuana use in some form or another. Recreational marijuana use is legal for adults over the age of 21 in Washington, Colorado, Alaska, D.C., and Oregon is next on the list, beginning in July of this year. A real estate attorney in any of these states might caution landlords to decide whether they want pot on their property. It’s possible to include a rule prohibiting growing marijuana on a rental property in the lease, which is something that both landlords and tenants should decide on and be aware of up front, before anyone signs anything.

For landlords and property managers who think growing pot plants on their property is an unsavory idea, they pretty much have to put the rule against it as a clause in the lease, a real estate attorney like Michael C. Van, licensed in multiple states in the U.S., would remind landlords. Otherwise the landlord would “have difficulty preventing renters from legally growing marijuana during the term of the lease” in states where personal plant growth is legal.

In the states where marijuana is legal, it may be pretty hard to evict someone for smoking or even disturbing neighbors with smoke unless multiple violations or constant complaints from neighbors have been filed. And as far as that smell that just won’t go away? Or pot resin stains everywhere? Landlords should be aware that a standard insurance policy won’t “have to cover damage caused by illegal activities” in states where marijuana is still strictly off the books. A real estate attorney would probably advise landlords in other states where tenants can toke legally to consult with the insurance company directly to find out whether they would follow the state or federal guidelines in issuing a policy. Insurances that adhere to the federal illegality of marijuana would probably decline coverage, but you might be able to find a policy that goes with what the state says, if you look hard enough.

Even with potential liability issues, “there is growing evidence of the marketability of openly allowing marijuana use,” and some crafty hotels and bed and breakfasts in Washington and Colorado are making a killing advertising their pot-friendly environment. As a property owner, it’s your call, but remember to always be clear and put the language in your lease.

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