Recreational marijuana is now legal in California, but there are still plenty of questions around what is legal and what's not. Listener Steven Guajardo was curious about the legality of smoking and growing marijuana in rental units.
@JacobMargolis so quick question on California prop64. Can you be evicted from a rental home or in federal housing? Do you have any insight?— Steven Guajardo (@onlythebestbudz) November 19, 2016
Currently, under California law, it's legal to smoke, possess and grow up to six plants of marijuana on your private premises. Whether it's legal to do so in a rental unit is another question.
Can I smoke pot in my rental unit?
According to attorney Joy Haviland with the Drug Policy Alliance, one of the organizations behind Proposition 64, the passage of the prop didn't make it so that everyone can now smoke marijuana in their rental units. There are still potential limitations.
If your lease agreement specifies that you can't smoke in your rental unit, then the answer is no, marijuana is not OK. Some agreements specifically disallow tobacco products, but not marijuana. Some go out of their way to mention pot. Ultimately, it depends on what your agreement says.
If smoking is prohibited per your rental agreement and you decide to smoke, you could open yourself up to the possibility of an eviction. However, it has yet to be seen if a California court would support an eviction on those grounds.
Can I grow pot in my rental unit?
The same rules apply here as they do to smoking. If your lease prohibits the growing of marijuana, then you're not allowed to do so. If your lease doesn't prohibit it, you're allowed to do so.
According to Haviland, "They could rely on a general clause that prohibits illegal activity or unlawful conduct on the property, but that might not be strong enough. It might depend on how they qualify illegal activity. Does it prohibit unlawful conduct under state law, or under state and federal law? If it's both, then yes, they could rely on that for a violation of the lease. Whether a state court is going to evict someone — an eviction proceeding goes forward in state court — will just depend on the case."
If you do decide to grow plants in your rental unit, remember, marijuana is quite pungent, and much of the hydroponic equipment that you might use is large and power-hungry. Ultimately, you might become a nuisance to your neighbors.
Bottom line: if you're either a landlord or a tenant and either of these issues arise, try to talk it out — or get a lawyer.
Do the same rules apply to federally subsidized housing?
No, both growing and smoking marijuana are prohibited in federally subsidized housing.
According to Brian Sullivan, supervisory public affairs specialist at the United States Department of Housing and Urban Development (HUD), "Marijuana remains illegal at the federal level and that's how it's treated in federally supported housing."
If it's determined that you are a marijuana user, you can be turned away from federally subsidized housing. If you use or grow marijuana while in that type of housing, you can be kicked out.
According to a 2014 memo from HUD, it's up to the discretion of the owners of the property if they want to remove current tenants for marijuana growth and use. If you're curious, that memo spells things out pretty clearly: for federally subsidized housing, marijuana is a big no-no. That includes medical marijuana as well.
If I can't smoke in my home, my car or out in public, what should I do?
That's hard to say. Maybe you have a friend with a home that you can smoke in. If you do smoke marijuana in public, you can be cited.
You can also consume marijuana via THC-infused edible, which is a smokeless option.
Regardless of what you choose to do or where you choose to do it, please don't smoke and drive. That's still dangerous and still illegal.
If you have any questions about marijuana in California that you'd like me to answer, tweet at me or drop me a line at JMargolis@scpr.org.
Series: High-Q: Your California pot questions answered
This story is part of Take Two's look at the burgeoning, multi-billion dollar marijuana industry in California, with audience Q&As, explorations of personal narratives and an examination of how the industry is changing the world around our audience.