Q: I have always included a clause in my leases that says if tenants use drugs on the property, they’re out. I recently smelled marijuana coming from the apartment of a tenant who moved in a few months ago. When I confronted this tenant, he claimed he uses marijuana for medical reasons, and said that because even the police won’t arrest him for his use, I have to allow him to use it and continue to live here. Is he right? –Dale S.

Q: I have always included a clause in my leases that says if tenants use drugs on the property, they’re out. I recently smelled marijuana coming from the apartment of a tenant who moved in a few months ago. When I confronted this tenant, he claimed he uses marijuana for medical reasons, and said that because even the police won’t arrest him for his use, I have to allow him to use it and continue to live here. Is he right? –Dale S.

A: If you want to stick to your guns, you’ll find several strong legal arguments to back you up. Under federal law, possession of marijuana is still illegal, even in the several states that have passed "compassionate use" laws. These laws protect people who use marijuana under a doctor’s recommendation from criminal prosecution under state statutes. They do not attempt to tell private citizens, such as landlords or employers, how they must react when employees or tenants use the drug on the job or in rented premises; nor do they elevate marijuana to the status of a prescription drug.

Let’s assume that your tenant meets the definition of a disabled person: He has or is regarded as having a physical or mental disability that substantially limits one or more major life activities. He’d be within his rights to expect you to be reasonably accommodating — for example, to regularly remind him of when the rent is due or forgive occasional tardiness if his prescription medication makes him prone to forgetfulness. But many would agree with you that as long as marijuana possession remains illegal under federal law, requiring you to permit its use on your property would be an unreasonable accommodation.

Before you conclude that might and right are on your side, however, give this some more thought. First, is this tenant’s use causing any problems? If you’re observing hoards of nighttime visitors, presumably supplying your tenant (or joining him), then you’re dealing with a party, not a prescription, which no compassionate use law will insist that you tolerate. Or, is your tenant acting bizarrely, leading you to believe he’s in a deep and constant marijuana daze? Again, you aren’t required to host such behavior on your property. But if your tenant is in all respects a neighborly, conscientious, rent-paying resident, it’s beginning to look like no harm, no foul.

Assuming your tenant is disabled and has a doctor who has recommended marijuana use, where do you expect him to use it? If every landlord evicts him for simply using the drug, he’ll be relegated to "back alley" locations in order to not become homeless. The voters in your state probably didn’t have that consequence in mind when they exempted medical use from prosecution under state laws. Maybe the truly compassionate thing to do would be to talk with your tenant and explore how he can meet his needs in a more discreet manner — he could start by closing the windows.

Q: Last month, my landlords sent me a letter stating that I had an outstanding rent balance of $150. I asked what it was for, because they had been accepting my regular monthly rent check without complaint. The landlords said that they had sent me a 30-day notice to increase the rent six months ago, and included a copy of the notice they claim to have sent. This was the first I had seen it, and the landlords had no proof that they had mailed the notice.

I will begin paying the increased rent in 30 days, but must I pay the alleged overdue balance? I think the landlords forgot to send the notice and are trying to collect on their mistake now. –Irma G.

A: Your landlords’ willing acceptance of six months of "old" rent is good evidence in support of your suspicion that they never gave you the notice. In fact, it suggests that the landlords never even intended to increase the rent back then. Think about it: If they intended to raise the rent but forgot to deliver the notice, they would at least have realized their mistake when you paid the old rent after the first 30 days. What’s probably going on here is that the landlords are looking around for some extra income and are concocting a story of delivering a rent-increase notice six months ago to generate that cash.

But let’s for a moment give them the benefit of the doubt and assume that they did deliver a notice. Still, their subsequent behavior doesn’t back that up. Unless they’re really poor businesspeople, they wouldn’t sit idly by while a tenant simply ignores a rent-increase notice. Most landlords would serve you with a notice to pay the new rent or move out, and they wouldn’t take six months to do so.

If you refuse to pay this supposed balance, your landlords may respond by giving you a "pay or quit" notice. If you don’t pay, they can file an eviction lawsuit, though it’s hard to imagine a rational landlord doing so over a debt of $150. Still, should this happen, your defense will be that the supposed balance isn’t backed by credible evidence. The stakes are very high in an eviction lawsuit — even though you have a good case, if you lose, you lose your tenancy.

Think long and hard about whether you want to take this risk and whether there is some sinister motive behind the whole thing — Are these landlords really trying to get you out? If that’s what’s going on, consider paying the money, then suing in small claims for its return. That way, if you lose, you don’t lose your tenancy.

Q: I’m wondering if I have grounds to break my lease when the reason is beyond my landlord’s control. I rent a townhouse that was supposed to include a creek with running water and a waterfall behind the back patio. It was one of the main reasons I was attracted to this rental. One month after my lease began, the creek’s pump broke down, the water stopped flowing, and the creek has turned into an ugly green swamp. The homeowners association has no funds for the repair and is essentially expecting homeowners and tenants to suffer in silence for their mismanagement of funds. I don’t think it’s fair that I should have to keep my lease if the prime attraction that was originally included is no longer available. –Albert C.

A: You can certainly move out and break your lease, but if the landlord decides that your departure was unjustified, he’ll no doubt keep your security deposit (as payment for future rent) and possibly also sue you for any balance left on the lease. To fight back, you’d need to go to small claims court and sue for the return of your deposit (and respond to any lawsuit by the landlord). In each case, the landlord will argue that the absence of the creek and waterfall are not so significant as to justify your leave-taking; you will argue that their presence played a significant part in your decision to rent, that the landlord knew this, and that his blamelessness is irrelevant.

Let’s see how you might go about building your case. Think back to the advertisements for this rental; did they proudly and prominently tout these features? Were they pictured in an ad, and did the owner offer them as a major selling point? The more you can show that the owner relied on these features to sell his rental, the closer you’ll be to proving that the creek and waterfall were central to the deal.

Second, what did you communicate to the landlord? A hard sell by the owner won’t make much difference if you didn’t make it clear that you were responding to and relying on the pitch. Did you make it clear that the creek/waterfall feature was the dealmaker for you? If so, the landlord knew that this aspect was central to your rental decision.

Finally, though it’s true that the landlord can’t make the homeowners association flush with cash, this doesn’t mean that you have to keep up your end of the bargain. You’ll prevail if a judge decides that the absence of the water features destroyed the essence of the lease, just as you would win if a wildfire (also not the landlord’s fault) substantially destroyed the premises.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord’s Legal Guide" and "Every Tenant’s Legal Guide." She can be reached at janet@inman.com .


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