The Paletz Law Blog

A Growing Concern: What Michigan Landlords Need to Know About Recreational Marihuana

Michigan Proposal 1, which sought approval for the recreational use of marihuana (Michigan spells it with an “h” instead of a “j”), passed in the November 2018 election. The impact of this is still being evaluated amongst several industries, including property management. Whereas marihuana was once viewed primarily as a counterculture vice, it is now more mainstream as several states have legalized its use.

Below is a recap of the recent history of marihuana legislation in MI:

• In 2008, the Michigan Medical Marihuana Act[1] (“Medical Act”) at MCL 333.26421 et seq. was enacted, which outlined permitted uses for individuals.
• In 2011, the former Michigan Attorney General Bill Schuette issued an Opinion that property owners could deny a tenant the use of marihuana, regardless if they had valid medical marihuana identification.[2] Although not law, this alleviated some of the uncertainty as it related to a private property landlord, and opened the door to taking a stricter approach relating to marihuana.
• Around this same time, the Medical Act as a whole withstood legal challenges, but it was eventually upheld by the Michigan Supreme Court.
• In April 2017, the Medical Act was amended to allow a landlord to outright prohibit the smoking and growing of medical marihuana, provided it was set forth within the lease agreement.[3]

The current Act, known as the Michigan Regulation and Taxation of Marihuana Act[4] (“Act”), MCL 333.27951 et seq., took effect on December 6, 2018. It is more voluminous than the Medical Act, and here are some highlights of it that are relevant to residential landlords and property managers:

• Individuals must be 21 years of age or older to use or possess marihuana.
• They can have 2.5 ounces on their person, and up to 12 marihuana plants and 10 ounces at their residence. However, anything above 2.5 ounces must be stored securely.
• Consumption in a public place (unless specifically permitted), or on private property if designated as such by the owner of that property, is prohibited.
• Likewise, operating a vehicle under the influence of marihuana is prohibited.

Ultimately though, it is still our position that a private property owner has the right to restrict or prohibit the smoking, growing, or distribution of marihuana, much like the smoking of cigarettes or other devices, provided that it is outlined within the lease agreement. If a landlord does not want to adopt an outright prohibition, we recommend taking a case by case approach. For example, permitting the smoking of it so long as it is not in any common areas or does not interfere with the quiet enjoyment of other tenants. Whichever position is taken, it must be uniformly applied amongst all residents to avoid potential fair housing issues based upon differential treatment of protected classes.

On that note, and as it relates to fair housing, because federal law stills considers marihuana as a prohibited substance, any entity that receives funding from the federal government typically will likewise consider marihuana as prohibited, regardless of any existing state law. This may include fair housing agencies, so the likelihood of a fair housing claim based on denying marihuana use to a disabled individual may be mitigated. However, with a new Michigan Attorney General sworn-in this past January and as with any informal administrative guidance, this approach is subject to change at any time and without notice.

The Bottom Line: The perception of marihuana has changed greatly over the last few generations, as it is no longer strictly associated with the subcultures of those times. As times continue to change, landlords should consider the effect on property management.

[1] http://www.legislature.mi.gov/(S(1ejo21li3qeaqtuqjup35zej))/documents/mcl/pdf/mcl-Initiated-Law-1-of-2008.pdf

[2] https://www.ag.state.mi.us/Opinion/datafiles/2010s/op10340.htm

[3] https://www.paletzlaw.com/2017/03/17/legal-buzz-landlords-need-know-michigan-medical-marihuana-act/

[4] http://www.legislature.mi.gov/(S(p5jgkqjn5pzd5uikkhfqep44))/documents/mcl/pdf/mcl-Initiated-Law-1-of-2018.pdf