Medical Marijuana Part 3 – What to do if your existing tenant uses Marijuana

Here are a few common situations that property owners are now facing:

–    Other tenants or neighbors are complaining about your tenant growing or using marijuana on your property;

–    On an inspection of your property, you smell marijuana or see marijuana plants growing in the yard or indoors;

–    There’s been a break-in at your property and police suggest that drug use or marijuana growing may be involved.

What should you do?  Don’t panic and assume the worst.  Follow these steps first:

1.     Examine Your Rental Agreement – is there any express prohibition of drug or marijuana use on the Property?  Is there a prohibition against smoking?  Remember, even if the Agreement is silent on these issues, marijuana possession, use, growing, and distribution – whether medical or otherwise – remain illegal under Federal law. Most rental agreements expressly prohibit tenants from any illegal acts.  So you likely have grounds to stop the activity and/or seek to evict the tenant.

2.     Get the Facts from your Tenant – are they in fact a “Qualified Patient” under California law (see Article 1)?  If so, they may have a legal right to use medical marijuana and a valid medical need. They must provide proof of this to you including the required medical doctor recommendation (Prescription is not required). If they are growing, cultivating, or distributing, they may need tp provide proof that they have the required Permits and Licenses from both the State and local governments.

3.     Check the Applicable Laws – Merely because they tell you they are in legal compliance does not mean that they are. Further, even if they qualify under California law, their activity may put them – and you – in violation of more restrictive local ordinances. These local laws range from no restriction to outright bans.  Remember, the limited immunity from criminal prosecution exists only if they are in full compliance with the applicable laws.  Violation could lead to Property seizure and worse.

4.     Determine what you want to do –  No matter their legality under California law and the validity of their medical need, nothing can compel you to allow this activity on your property… unless the Rental Agreement signed by all parties allows it.  However, even under those circumstances, no-one may use their tenancy in such a way that interferes with the enjoyment of other tenants and neighbors nor can you allow them to do so. Before deciding that terminating the tenancy is your only solution, meet with your Tenant and explain the issue. Perhaps there are solutions that can mitigate the nuisance while allowing the tenancy to continue.

5.    If you decide to terminate the tenancy, follow proper procedures.  If you decide to treat the activity as an illegal act, you may be able to use a “3 Day Notice to Quit”  and seek a fast termination without giving the Tenant an opportunity to cure the problem.  Alternatively, you could give them a 3 Day Notice to Perform Covenant or Quit… in other words, stop the violation or get out;  Or, if they are a month-to-month tenant, you could give them a 30 or 60 Day Notice of Termination of Tenancy.

6.     Anticipate potential Court opposition.  If you decide to pursue termination and the Tenant fails to vacate in the time required under the Notice, then you will be filing an Unlawful Detainer action (Eviction) in the local Court. You, as Plaintiff, will have the burden of proving that your Tenant has breached the Rental Agreement. Your Tenant will likely provide proof (if it exists) that they are a Qualified Patient with a valid medicinal need who is in compliance with State and local medical marijuana laws. It is possible that a Judge may reject the eviction under these circumstances or seek to impose some conditions for the tenancy to continue.  So be prepared to offer evidence of the problems that the use is creating in the property, ie: complaints, odor, crime, etc.

For over 20 years, the attorneys of BPE Law have been advising our clients on the purchase and sale, development, management, and leasing of real estate in California.  When needed we provide effective and aggressive representation in any litigation, arbitration, or regulatory matters that arise.  If you have any further questions, please feel free to contact me at or, if you need help now, please call our office at (916) 966-2260 to set up a consultation.

This article is not intended to be legal advice, and should not be taken as legal advice.  Every case requires review of specific facts and history, and a formal agreement for service.  Please feel free to contact us if you need legal advice and are interested in seeing if we can help you.