Pubdate: Sat, 14 Feb 2015
Source: Alaska Dispatch News (AK)
Copyright: 2015 Alaska Dispatch Publishing
Contact:  http://www.adn.com/
Details: http://www.mapinc.org/media/18
Note: Anchorage Daily News until July '14
Author: Scott Woodham

CAN I KEEP MY RENTERS FROM USING, POSSESSING OR GROWING POT?

Highly Informed discusses whether or not landlords would be able to 
prevent marijuana possession, use or cultivation in residential 
properties. public domain image

Philip wonders if legalized cannabis in Alaska will affect him and 
his tenants: "I own rental property at which my lessor may currently 
smoke (tobacco) indoors. Can I prohibit the renter from growing, 
possessing or using (cannabis) if they choose to rent from me?"

Cynthia Franklin, director of Alaska's Alcoholic Beverage Control 
Board, the agency currently in charge of the rulemaking process 
initiated by voters with Ballot Measure 2, said by email she believes 
that yes, state law allows for private property owners to set the 
rules regarding herb on their own property.

The initiative-created statute Franklin identified as relevant is AS 
17.38.120(d), which reads, "Nothing in this chapter (AS 17.38) shall 
prohibit a person, employer, school, hospital, recreation or youth 
center, correction facility, corporation or any other entity who 
occupies, owns or controls private property from prohibiting or 
otherwise regulating the possession, consumption, use, display, 
transfer, distribution, sale, transportation, or growing of marijuana 
on or in that property."

Franklin said, "That means that a landlord could write a prohibition 
of marijuana in the lease. If a tenant had marijuana in any of these 
capacities on the property, they would be violating the lease in the 
same way as if they had a pet on a property where the lease 
prohibited pets, and would be subject to eviction and perhaps fines 
to restore the property to its pre-lease condition, depending on the 
specific terms of the lease or rental agreement."

According to the Alaska Department of Law, any rules in a lease or 
rental agreement must be reasonable and clearly defined, and must 
apply to all tenants equally. So if a landlord would like to include 
a clause like that in a lease, there's no stopping him or her. And if 
a tenant signs such an agreement, the law seems unlikely to side with 
the tenant in a dispute.

However, whether such a clause is enforceable would be less certain. 
Franklin said that, in her opinion, landlords will be able to ban pot 
independently and it will be enforceable. "But we won't know for sure 
until someone sues," she said.

Kevin Brady, an Anchorage attorney familiar with landlord-tenant law, 
disagrees. In a phone interview, he honed in on a key question: 
"Unless a behavior produces an observable effect on the property, how 
would it be enforceable?"

To guess at how a rental dispute over cannabis may resolve, there are 
a variety of complications to consider. I'm limiting my discussion to 
residential property, not commercial. Brady noted that commercial 
tenants typically have a different legal standing from residential tenants.

None of the following is the last word and should not count as legal 
advice, simply a discussion of possibilities. Tenants and landlords 
should consult an attorney if they wonder about how their rights and 
responsibilities work in the real world, not the hypothetical 
universe of this column.

A funny looking houseplant?

So first, let's tackle the cultivation element of Philip's question.

The Alaska Uniform Residential Landlord & Tenant Act holds that a 
landlord's reasonable, clearly defined and equally applied rules may 
be enforced if their purpose is to promote the convenience, safety, 
health or welfare of the tenants; preserve the landlord's property 
from abuse; or make a fair distribution of services and facilities. 
But that isn't always referring to rules included in a lease 
agreement (things like signs against cars idling near building 
ventilation intakes and so on). Leases are different. Landlords can 
write just about anything into a lease agreement, and tenants may or 
may not sign it. But writing those terms down and enforcing them are 
two different things.

Because a home garden could conceivably lead to nuisances or property 
damage that a landlord wouldn't want, clauses describing their 
acceptable construction or design would seem reasonable to include in 
a lease agreement -- for instance, requiring adequate odor control, 
or proper heat mitigation and safe water or electrical systems. An 
outright ban on legal cannabis cultivation would not seem reasonable 
to me unless houseplants or other kinds of plants, like tomatoes or 
kitchen herbs, are also prohibited on the property, indoor or out.

Ballot Measure 2's approval introduced a section to state law that 
applies to personal cultivation (AS 17.38.030). It requires that 
cultivation "may only occur on property lawfully in possession of the 
cultivator, or with the consent of the person in lawful possession of 
the property." I interpret the effect of that as an invitation for 
people negotiating the transfer of possession or use of property 
between two parties to specify or set conditions for such consent. 
That seems reasonable and enforceable.

However, cultivation aside, prohibiting the simple possession of 
state-legal amounts of marijuana on a property does not seem 
enforceable because possession itself has no real consequences to a 
property. Having marijuana in an apartment is not the same as having 
a pet. Cannabis does not claw at the door or crash through vertical 
blinds. Certain kinds of cannabis may smell like skunk, aged cheese 
or pine-scented ammonia, but a plant won't spray the walls like a cat 
might. For that matter, you can't keep pets in airtight jars.

For tenants' own good?

The health or welfare part of the law may be a way for some landlords 
to try to ban all use of cannabis in residential properties, it seems 
to me, but that seems unreasonable unless alcohol or tobacco aren't 
similarly prohibited. In Philip's case, a landlord who allows 
cigarette smoking wouldn't seem to have much standing to ban 
marijuana smoking. It follows that the same reasoning would go for 
alcohol consumption.

If the grounds for a landlord's indoor smoking bans rest on avoiding 
damage to the property, it may not apply to all situations involving 
cannabis. For a variety of reasons, chief among them frequency of use 
and lack of wall-yellowing nicotine, cannabis smoke does not linger 
the way tobacco smoke does. And if a ban is instituted to promote the 
health and welfare of other tenants who may be negatively impacted by 
cannabis smoke or vapors, preventing problems may not require an 
outright ban in the lease. There are also municipal nuisance 
ordinances that would likely apply to a situation like that, and 
others, regardless of a lease agreement.

Also, there are ways besides smoking to consume cannabis. 
Vaporization, either of cured flowers or any of the various 
concentrates, doesn't involve combustion. Eating cookies also doesn't 
produce smoke. So even if a landlord has a broad prohibitions against 
smoking, it may not apply to all forms of cannabis use.

And even if there are prohibitions against smoking indoors or in 
common areas, I don't think they'd apply to smoking on a porch or 
deck not shared by multiple units. It seems like people could still 
step outside on a private deck, much as they do now with cigarettes.

Brady said that landlords who may want to ban pot on their properties 
"might have to endure, for lack of a better word," some amount of 
discreet behavior involving cannabis that doesn't have undesirable 
consequences to the property.

A property owner who would like to make a rule against smoking 
cannabis may be risking a tenant who abides by that agreement but 
still vaporizes cannabis or consumes edible products, neither of 
which involve smoke from combustion and have essentially no 
observable effect on a property.

Brady said that one avenue a landlord could use for enforcing a 
blanket prohibition on cannabis at a residential property is a "no 
criminal law violation" clause. Because federal law still treats the 
plant and its produce as illegal, Brady said in his opinion a clause 
like that might be enforceable for eviction purposes. 
"Realistically," he said, "I don't see it playing out. It's unlikely 
that simple possession would be a matter for federal court."

Typically, federal charges for marijuana involve extremely large 
amounts intended for sale, not personal use.

Hippies must use side door

If landlords out there are really serious about keeping cannabis 
users out of their properties, they might have to revise current 
leases to cover situations that aren't accounted for. Landlords are 
free to put anything in their leases they want. Tenants are free not 
to sign. And just putting something in a lease doesn't mean it's 
enforceable. Decades of prohibition have trained many cannabis 
enthusiasts to be canny concealers of their behavior and to be 
comfortable risking negative consequences, many of which -- until 
Feb. 24 -- involve criminal charges that will seem much worse 
compared to trying to find a new place to rent.

A rental agreement revision process might also risk losing current or 
future tenants who don't want a nanny for a landlord, whether or not 
they use cannabis. It might also surprise landlords which of their 
current tenants won't be willing to give up responsibly using, 
possessing or growing cannabis in their homes, even if they rent.

If a landlord really is dead-set on keeping the pot out of their 
properties, there may be a simple fix. "Pot smoker" is not a class 
protected from discrimination in Alaska. Neither is "stoner" or "Long 
Haired Country Boy."

Just including language like that in the classified ad for tenants 
would pretty well make sure undesirables don't apply. But I don't 
think that'll happen. First of all, if drug use survey data are at 
all accurate, Alaska's high per-capita use rate and strong pride in 
personal privacy might mean that unit goes unrented for a while, 
maybe a long while. Also, sexuality isn't a protected class either, 
and there aren't any rental advertisements I've seen that say "no 
gays." And thank goodness for that.

So, the answer, legalized cannabis or not, is that landlords should 
still feel free to be clear in spelling out the behavior they expect 
of the people who rent or lease property from them. But they should 
be aware that depending on their specific situation, a prohibition on 
cannabis may be enforceable, and it may be even less desirable than 
grudgingly accepting some discreet, nondamaging use of herb.

And tenants should be careful to only rent from people whose rules 
they would like to live under. Signing a lease means abiding by 
reasonable rules or risking a hassle.

Have a question about marijuana news or culture in Alaska? Send it to  with "Highly Informed" in the subject line.
- ---
MAP posted-by: Jay Bergstrom