no smoking icon 300x300More and more states are legalizing recreation marijuana use and others allow it for medicinal purposes, so what are your rights to smoke marijuana in your apartment? What if you live in a smoke free apartment complex, like Diversey Manor, or our new Catalina Crossing and Wilson Heights Apartments? In fact, now all of our locations are smoke free.

Be aware that housing providers are free to govern their housing offering in any matter they may choose to the limit of those regulations provided to shield protected class people within Fair Housing.

So the first question should be, is there anything about the use of marijuana that would result in someone being recognized as being in a protected class? For most users, the answer is going to be no. Theoretically, if there is a user being prescribed marijuana as a remedy for their disability, then marijuana use might be described as a reasonable accommodation that a landlord must allow just as he or she would for any other disability.

However, even this narrow exception is problematic. First, physicians in the US are not actually permitted to prescribe marijuana, although they can recommend its use. Second, a reasonable accommodation for a disability does not grant license to impose upon other residents.

For example, an individual keeping a service dog to help a disability does not have additional license to allow the dog to bark incessantly, bite other residents, leave the yard soiled and destroy property. The dog’s owner must still comply with landlord pet policies that would prohibit such behavior and repeated violations of these policies could lead to the loss of the right to keep the particular animal or even the termination of tenancy.

Similarly, a tenant allowed to smoke marijuana as a reasonable accommodation for a disability does not have the right to subject other residents to second hand marijuana smoke.

While laws are rapidly changing, at least right now, landlords can prohibit all smoking on their properties, including marijuana smoking. Landlords may also prohibit marijuana smoking even if other smoking is allowed. There is no blanket protection for marijuana users that gives them any particular rights as a protected class. What narrow rights there might be are convoluted and problematic.

Decker Properties prohibits marijuana cultivation and use in all our properties.