Medical Marijuana – Is It a Fair Housing Issue?

Medically prescribed marijuana use is permitted in 37 states and the District of Columbia, specifically for medical purposes.  In addition, 18 states (Alaska, Arizona, California, Colorado, Connecticut, District of Columbia, Illinois, Maine, Massachusetts, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Vermont, Virginia, and Washington) have also legalized recreational marijuana.

Property managers often inquire about whether individuals can be denied housing based on their marijuana use, considering the drug’s legal status in the state where the property is located. The answer is both “yes” and “no.” Recreational marijuana users may be denied occupancy, but individuals with a physician’s prescription for medical marijuana should not automatically face denial.

While the Fair Housing Act (FHA) does not explicitly address drug use in housing, the legislative history used by HU, courts, and tribunals to interpret the law clearly indicates that the exclusion of current illegal drug users does not apply to individuals using controlled substances that are legally prescribed by a physician. According to an office House of Representatives report, “the exclusion does not eliminate protection for individuals who take drugs defined in the Controlled Substances Act for a medical condition under the care of or by prescription from, a physician.” The report also asserts that “the use of a medically prescribed drug clearly does not constitute illegal use of a controlled substance.”

However, there are limitations to this protection for medical marijuana use:

  • The marijuana must be legally prescribed by a physician for a specific medical condition authorized by state law.
  • The person must use the marijuana solely for the prescribed condition.
  • Usage should be confined to the person’s own apartment and not common areas.
  • The individual must not possess or cultivate more than the maximum amount permitted by law.
  • Selling or distributing marijuana to others is not allowed.

In contrast, recreational marijuana users do not enjoy the same legal protections as medical marijuana users, and they may face housing denial. However, this legal landscape can be complex. For this reason, managers should thoroughly explore state and local laws in places where recreational marijuana is legal.

Property managers also need to consider one important factor when renting to individuals using medical marijuana. If the property is designated as non-smoking, permitting the smoking of medically prescribed marijuana on the premises would not constitute a “reasonable accommodation” as it fundamentally alters the property’s operations.  Medically prescribed marijuana can be consumed in various forms, including food, pills, powder, topicals, and tinctures.

Bottom Line: While medical (and even recreational) marijuana is permitted in many states, only users of medical marijuana are protected by the Fair Housing Act. And even users of medical marijuana must follow specific rules when using the marijuana at properties. Owners and managers of multifamily properties should develop written policies governing the use of medical marijuana at their properties, and those policies should be carefully reviewed by attorneys familiar with state and local laws relating to the issue of medical marijuana.