THE LEGAL BUZZ: What Landlords Need to Know About the Michigan Medical Marihuana Act
March 17th, 2017 | By: Matthew I. Paletz, Esq.
The Michigan Medical Marihuana Act (MCL 333.26421) was enacted in 2008. However, recently in a positive development for property owners, MI Senate Bill 72 was signed into law by Governor Snyder. It amends the Act to allow a landlord to outright prohibit the smoking and growing of marihuana, irrespective if the tenant has the license to do so, when it formally takes effect in early April, 2017.
So long as you, as landlord, have this clause outlined in a written lease, you now have the discretion to take a more aggressive approach with how you address medical marihuana at your properties. Just remember, the position you take must still be uniformly applied amongst all your residents to avoid fair housing scrutiny.
Key Provisions of the Act:
Regardless of how a property owner is going to proceed, it is still important to be familiar with the Act itself. In order for an individual to legally possess it they must be a “qualified patient.” This is someone who has been diagnosed by a physician as having a “debilitating medical condition.” This is defined by the Act as:
- cancer, glaucoma, or positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), hepatitis C, amyotrophic lateral sclerosis, Crohn’s disease, agitation of Alzheimer’s disease, or nail patella.
- a chronic or debilitating disease or medical condition or its treatment that produces one of more of the following:
- cachexia or wasting syndrome;
- severe and chronic pain;
- severe nausea;
- seizures, including but not limited to those caused by epilepsy; or
- severe or persistent muscle spasms, including but not limited to, those which are characteristic of multiple sclerosis; or
- any other medical condition or treatment for a medical condition adopted by the department by rule.
Once a “qualified patient” has obtained written proof from a physician of their “debilitating medical condition,” they must register with the State. Once the State approves, it then issues a medical marihuana identification card. So long as one has their card, they can legally acquire 2.5 ounces of usable marihuana and grow up to 12 plants. All must be enclosed in a locked facility. The Act defines this as “a closet, room, or other enclosed area equipped with locks or other security devices”.
History of the Act:
When originally passed in 2008, the Act did not specifically outline what constituted grounds for termination of tenancy. Then, in 2011, the Michigan Attorney General (AG) issued an Opinion that property owners could deny a tenant the use of marihuana regardless if they had a valid ID. In light of this, some of our landlord clients elected to take a zero tolerance approach and banned all usage at their properties. Others were still cautious so as not to invite any potential fair housing repercussions since these individuals could claim discrimination based on the underlying disability that was the reason for their medical marihuana use.
Also during this time period, the Act as a whole withstood legal challenges and it was eventually upheld by the Michigan Supreme Court in February 2014 (see John Ter Beek v City of Wyoming, 495 Mich 1; 846 NW2d 531 (2014)). In that decision, a municipality that had enacted an ordinance banning medical marihuana within its borders, thus not following the Act, was overruled since it was determined that state law was controlling.
Now, in light of the recent amendment, if a landlord is faced with a marihuana smoking tenant and does not want to adopt an outright prohibition, we recommend taking a case by case approach. Once you have made your assessment, it may then be appropriate to initiate an eviction after following these steps:
- First, verify that they have a valid state issued medical marihuana card.
- Second, assess whether they are storing the marihuana and/or plants as defined by the Act as set forth above.
- Third, investigate if they are smoking it in common areas, around children, or is it becoming a nuisance and thus interfering with the quiet enjoyment of other residents.
- Fourth, look for suspicious behavior, i.e. increased foot traffic or loitering to suggest that the tenant may be selling or distributing it and therefore would be acting outside the scope of the Act.
Finally, although there has been no express proclamation, it appears that the Michigan Department of Civil Rights (MDCR) is still following the AG’s Opinion and has not been pursuing discrimination complaints based on the denial of tenancy for medical marihuana. As to Senate Bill 72, we will have to wait and see how they and the local MI judiciary interprets it as it relates to a landlord’s right to enforce their marihuana guidelines or absolute prohibition. Notwithstanding, the Act continues to be under scrutiny since Federal law still views all marihuana use as illegal.
The Bottom Line: The Michigan Medical Marihuana Act has brought new freedoms to tenants and unfortunately more hangovers to landlords. If you are faced with a tenant who is in possession of or is smoking marihuana on the premises, and you do not wish to ban its use, then you should investigate and follow your internal protocols before initiating an eviction. Whatever you as a landlord choose to do, make sure you do it consistently. Otherwise, your best laid plans will go up in smoke.