Christina Semmer is an employment and business lawyer who counsels employers regarding Proposition 64 and workplace drug policies. Ms. Semmer practices law at Wilson Turner Kosmo, LLP, the largest certified women-owned law firm in San Diego. Here, she answers questions about tenants’ and landlords’ rights on marijuana use and cultivation.

Q. What rights do landlords have when it comes to deciding whether renters can smoke or grow pot in their properties?

A. In short, landlords in California can prohibit tenants from smoking or growing marijuana in their property ― regardless of whether it’s medical or recreational marijuana. It really comes down to what is in your lease. (For purposes of this question, we will assume we’re talking about residential leases. The law differs in some respects for commercial leases.)

Although many landlords haven’t yet updated their leases to address marijuana in a post-Prop. 64 world, you should look out for several common lease provisions that determine whether (and how) you can use or grow marijuana at your rental home.

Marijuana Use in the Rental

Leases that prohibit smoking “of any substance” (as the California Association of Realtors standard lease does) necessarily prohibit marijuana smoke and are more restrictive than leases that merely ban tobacco smoke.

Having edibles and/or concentrates would not violate a generic “no smoking” provision, though doing so might violate a different provision of the lease. For example, many leases prohibit tenants from using the premises for any unlawful purpose, including using, storing, or manufacturing “illicit” or “illegal” drugs.

Of course, pro-marijuana tenants would argue that marijuana is legal under California law. But landlords can still point to the fact that marijuana is illegal under federal law, and argue that any use (or growing) in the rental violates the lease provision prohibiting the use or manufacturing of illegal drugs. (If you are a tenant in Section 8 housing or federally-subsidized housing, federal law absolutely governs. If you are a tenant in private housing, your landlord still has a colorable argument that it intended to apply federal law, as well as state law.)

Marijuana Growing in the Rental

As your question relates to growing, many leases prohibit making alterations to the property without the landlord’s permission, so any modifications for ventilation or electricity would violate that provision.

Similarly, most leases prohibit damaging the property in any way beyond reasonable wear and tear. So, for example, if growing causes mold, mites, or other issues, that would likely constitute a violation of the lease.

If the landlord pays any of the utilities, the excessive use of water or electricity resulting from even a stealth grow operation arguably would constitute a “waste” in violation of many leases.

There is a higher risk for landlords to rent to individuals who grow―as opposed to merely consume―marijuana, for reasons related to insurance, risks to the property due to electrical/plumbing issues, and the possibility (although perhaps remote if the tenant is only growing for himself) that the landlord’s property could be seized under federal asset forfeiture laws. So, while some landlords might be open to tenants’ discrete use of marijuana in the rental, many would likely prohibit any growing on the premises.

Practical Advice

At the end of the day, you do not want an eviction action hanging over your head because you and your landlord have a difference of opinion about what exactly constitutes a breach of your lease. Moreover, because landlords have an obligation to provide a habitable environment for their other tenants, if the landlord received complaints about your marijuana use, the landlord will have stronger grounds for taking action against you.

At the same time, no landlord wants to undergo the time and expense of initiating an eviction action for an otherwise good tenant. Thus, if you are “busted” for smoking, it might make sense to ask your landlord whether his or her concerns would be addressed if you agreed to other methods of consumption.

On the landlord side, smart landlords should update their leases on a going-forward basis to more explicitly spell out what is and is not permissible in their rentals when it comes to marijuana. This will set expectations for current tenants (which is, in part, important if an eviction action does arise) and will weed out tenants who would not be a good fit for the property, hopefully cutting down on future issues.

Disclaimer: This column is solely informational in nature and is not intended as legal advice.