Fair Housing and Marijuana - Do You Have To Permit Its Use? - The Fair Housing Institute, Inc.

Fair Housing and Marijuana – Do You Have To Permit Its Use?

Marijuana use continues to be a challenging situation for property management companies. What are the fair housing implications, and do you have to permit its use? 

Estimated reading time: 5 minutes

Fair Housing and the use of marijuana

Currently, marijuana use is legal in 21 states, with medical use being legal in 37 states. However, it is still considered illegal from a federal standpoint, leading to confusion. Let’s consider some common situations that housing providers come across as well as how your property type plays a role in what you can and cannot do.

A resident has informed management that they need a reasonable accommodation for the medical use of marijuana – Now what?

Consider this scenario: A resident has just called the front office, and they are quite angry at the letter they received stating that it is against the property’s policy to smoke marijuana and that they need to stop immediately. The resident is under the impression that since it’s technically legal in their state, the housing provider has to provide them with a reasonable accommodation as prescribed due to a disability. How should this be handled?

The very first step is to verify exactly what your state laws are regarding marijuana and its legal use of it. If medical use is legal in your state and your property isn’t federally funded, you can proceed with a reasonable accommodation request as per your property’s policy. Keep in mind that if your property has a no-smoking policy, this will also affect the request.

Are there any scenarios where you can ignore or deny a medical use of marijuana request without processing a reasonable accommodation request?

The first scenario where you could deny or ignore a request is if the use of marijuana is still illegal from both a federal and state standpoint. This would violate the law and would therefore be illegal to process a reasonable accommodation request.

A second scenario would be if your property is federally funded. A HUD notice states that since a property is receiving federal funds, it must follow federal laws regardless of what the state laws are regarding the use of marijuana. At this point, you can again reject the request as being unreasonable as it violates the law.

Which types of properties are able to consider this type of request?

While federally speaking, marijuana use is still illegal; this is not being enforced in states that have laws permitting its use. Conventional or private-rate market communities that do not receive funding from HUD and are located in states where marijuana use is legal, especially from a medical standpoint, would want to consider these types of requests. Once again, take into consideration your property’s other policies, like no smoking.

If a resident has requested a reasonable accommodation to smoke marijuana, what does a housing provider need to consider before being able to process the request, and what are the next steps?

The first things a property needs to consider are its policies and its funding. If it’s a federally funded property, the answer is an automatic ‘no’, and the request doesn’t even need to be considered based on the guidelines provided by HUD. 

If the property is located in a state where marijuana is illegal, again the answer would be ‘no’ because it would be an unreasonable request since it’s illegal. 

Now, if it is a conventional or private market property, and it’s located in a state where marijuana is legal, then the property has the option to consider a request for reasonable accommodations filed by a resident who wants to use marijuana on the property.

When verifying the request, is their medical marijuana card or written prescription enough to verify the request?

Because rules and laws vary from state to state, this can prove to be a complicated matter. As a result, this is a decision that should be made at a high level in a company, and you shouldn’t rely on, for instance, the property manager to decide on a case-by-case basis whether you’re going to ask for additional verification from the medical provider or accept the prescription or the card. A best practice would be to consult a fair housing attorney to help you clearly outline what your policies and procedures will be concerning this matter.

What are some challenges with processing and granting the request?

There are many different aspects that need to be considered when processing or granting a request to use marijuana. Beyond adequate verification, you also need to consider your general smoking policies on the property. If you don’t permit smoking, then you don’t have to permit smoking marijuana. 

If you do permit smoking, then there are issues sometimes involved with the odor caused by marijuana, as it can be quite strong. This could potentially interfere with the peace and quiet enjoyment of the neighbors’ use of their units. If that’s the case, then you may have to sit down with the resident to discuss whether there are all alternatives that may permit the use of marijuana but maybe not involve smoking. 

We have just discussed some of the more common issues that arise with the use of marijuana by residents. As state and federal laws continue to evolve, we will be sure to help everyone in our community stay up to date with fair housing laws and training. 



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