Legal Question in Landlord & Tenant Law in California

Re: medical marijuana growing by tenant in CA

There is no question that you would be putting your home at risk. First, I do not believe that a medical marijuana card allows them to grow their own marijuana - my understanding is that it only allows the carrier to buy medicinal marijuana from a licensed clinic. Second, and more importantly, the Federal Government does not recognize California's legalization of Medical Marijuana. Federal Law still makes possesion of Marijuana in any form (medical or otherwise) a crime, and the penalties for violation include seizure of real and personal property. The advocates of Medical Marijuana are convinced that the State of California has the right to legislate exclusive of the Federal Government on this issue, but there have been seizures of clinic properties and other arrests and prosecutions of persons who otherwise (under State law) would have appeared to be legally entitled to have marijuana.

That being said, its very likely that you are in a "damned-if-you-do, damned-if-you-don't" situation. If you deny this person tenancy, then they will very likely claim that you are discriminating because of their "medical condition." The response or defense is that you are not prohibiting them from using Medical Marijuana on your property, you are prohibiting growth of it on your property, which is a reasonable restriction on a residential rental. Let him rent a commercial property if he wants to grow Marijuana.

*Due to the limitations of the LawGuru Forums, The Gibbs Law Firm, APC's (the "Firm") participation in responding to questions posted herein does not constitute legal advice, nor legal representation of the person or entity posting a question. No Attorney/Client relationship is or shall be construed to be created hereby. The information provided is general and requires that the poster obtain specific legal advice from an attorney. The poster shall not rely upon the information provided herein as legal advice nor as the basis for making any decisions of legal consequence.

Re: medical marijuana growing by tenant in CA

Under state law (SB 420) if the potential renter has a valid med mar card, he/she is allowed a guideline limit of 8 ounces of dry bud and 6 mature OR 12 immature plants. While Mr. Gibbs has highlighted the federal/state law preemption issue for you, I believe the risk has been overstated. This is a fluid area of the law, the Obama administration has recently indicated that it will not follow the Bush administrations approach to this issue. http://blogs.wsj.com/health/2009/03/19/obamas-ag-details-medical-marijuana-policy/

At least the potential renter has been honest and upfront with you. As Mr. Gibbs pointed out, you do run the risk of a discrimination claim if you deny the renter occupancy based on just this issue.

If you would like more information, feel free to contact me.

Yours truly,

Bryan

619.400.4929

877.201.8728