BY JACOB ZAHNISER
This article originally appeared in the December 2015 edition of the HFO Real Estate Newsletter.
Oregon and Washington both have laws permitting the possession and use of medical and recreational marijuana by adults over the age of 21. However, marijuana possession and use remains illegal under federal law. Landlords have the right to decide whether to allow it on their residential rental properties.
An Oregon and Washington residential landlord may prohibit marijuana growth and consumption in its units or on its property. In Oregon, the Supreme Court ruled, in 2010, that federal law takes precedence over Oregon’s medical marijuana law, and that employers do not have to accommodate employees’ use of medical marijuana. Similarly, in Washington, the Supreme Court ruled that an employer may discharge an employee for medical use of marijuana. By analogy, possession and use of marijuana is not a reasonable accommodation — or an ADA-compliance issue — for landlords.
In addition, the Fair Housing Council of Oregon published a policy statement that “no one has to allow medical marijuana users to use it [in their housing].” The Bureau of Labor and Industries announced that the “Civil Rights Division will not investigate housing claims of discrimination pertaining to the use of medical marijuana.”
Similarly, the Washington Human Rights Commission determined that “a claim of failure to reasonably accommodate a disability” arising out of the use of medical marijuana will “most likely result in a No Reasonable Cause Finding.”
In sum, landlords have it within their control to enact rules and regulations prohibiting the on-premises growing or use of marijuana. Still, pitfalls remain; consult an attorney when implementing marijuana rules at your residential rental properties.