Erin Flammer has been thinking of growing some marijuana.
While in most U.S. cities that would be illegal, the management consultant, 34, lives in D.C., and decided she might take advantage of a law, enacted almost exactly a year ago, allowing individuals to cultivate up to six plants — no more than three that are mature at any one time — in their homes.
But first, she had to ask her roommates.
Flammer shares a group house in Petworth with three others. “I don’t know if any of us use marijuana except for maybe one,” she says. “It would just be something to gift to people.”
None of her roommates had an issue with growing some plants in their backyard. “We all know the legal amount,” she says.
Less clear, though, is whether she needs to ask her landlord. “The lease doesn’t have any legal stipulations about marijuana in it. So I’m not sure if we need to,” she says.
That’s because the rules for renters who want to grow marijuana are somewhat murky — even for Flammer, who may be a little more in the know than most. She’s dating Adam Eidinger, who spearheaded the DC Cannabis Campaign, one of the driving forces behind the 2014 D.C. ballot initiative to legalize the possession of a small amount of marijuana.
Initiative 71, as it was known, passed in November 2014, and in February 2015 possession of 2 ounces or less of marijuana became legal for D.C. residents over 21 years old, as did growing a small amount of marijuana. The sale of marijuana is not legal. Neither is using it outside of your home.
So when you’re renting a home that’s owned by someone else, what are the rules?
D.C.’s office of the attorney general says landlords can just say no to tenants who want to grow marijuana. “Nothing in Initiative 71 prevents a landlord from prohibiting their tenants from growing or possessing legal amounts of marijuana,” the office said in a statement.
It’s not just about marijuana: Landlords have the right to prohibit activities on their property as long as there is not a legal statute expressly forbidding them from doing so, the attorney general’s office says. He or she just has to include a clause in the lease expressly forbidding it. But since the cannabis law is so new, it’s possible that your lease, like Flammer’s, is mum on the subject of cannabis. So does that mean you’re in the clear to grow and smoke legally?
“There’s not a black-and-white answer,” says Joel Cohn, legislative director of D.C.’s office of the tenant advocate.
Usually, a landlord cannot impose a new lease obligation in the middle of the tenancy, Cohn says. This would mean that in theory, if the lease said nothing about marijuana, the tenant would be able to grow and smoke a legal amount for the duration of the lease. If the landlord wanted to prohibit it, he or she would have to wait until the lease was up and add a clause prohibiting cannabis in the next lease agreement.
But cannabis may not be as clear-cut as that. If a landlord and tenant ended up in court over the issue, both sides might have a case, Cohn says.
“The fact that [marijuana] was illegal before is an arrow in the landlord’s quiver,” Cohn says. “Usually it is assumed in the lease — or might be explicit in the lease — that to violate the law would be grounds for eviction even if [the landlord hasn’t] spelled out each and every activity,” he says. An attorney could argue that the landlord isn’t changing the lease’s requirements, rather that it was the law that changed.
“None of this has been decided by a court as yet,” Cohn says. “It probably will be.”
Since restrictions on tenants need to be spelled out in the lease, “as a renter you need to negotiate that lease,” says Eidinger, 42.
“Maybe offer to pay slightly more money” in exchange for being allowed to grow marijuana, he suggests. “But not a lot more.” Eidinger says he doesn’t want it to become standard for marijuana users to have to pay extra.
Many apartment buildings already had bans on smoking, and those can apply to marijuana smoke too, depending on how the clause is written.
“It depends how smoking is defined,” says Kate M. Bell, a legislative analyst at the Marijuana Policy Project. “Some are defined with respect to tobacco,” but others are written so that they apply to all types of smoke.
So it’s a good idea to talk to your landlord before growing your own. If you want to make any changes to the rental to install equipment, you’ll need their permission anyway. But even if you just want to grow a few plants on a sunny windowsill, run it by them.
“Be upfront and honest with your landlord,” Eidinger says. “Give them examples of what you’re going to do: Show them pictures of other apartments; maybe even take them on a tour [of an apartment with a similar setup].”
If your landlord refuses to let you use cannabis, you could take them to court.
“If the lease already says no smoking, I believe the landlord could be likelier to win,” Cohn says. “If there is no such lease clause, there will be good arguments on both sides.”
Flammer is seriously considering discussing it with her landlords. “We’re on really good terms,” she says. “So we might want to ask them and see what they say.”
Where you can’t grow it at home in D.C.
Initiative 71 made growing and using small amounts of marijuana legal for District residents over age 21, but the federal government still has a ban on marijuana. So if you live in federally subsidized housing, even in D.C., it’s illegal to grow or use marijuana.
Landlords whose tenants receive federal subsidies are required to have zero-tolerance policies. “The landlord not only can evict you for it but is supposed to evict you for it. If they don’t enforce it, they find themselves at risk,” says Adam Eidinger, who fought to legalize cannabis in D.C. and now is a leader of DCMJ, a community group for marijuana growers and users in the District.
One argument activists like Eidinger use for federal marijuana legalization is that this system leaves renters open to being pressured by their landlords to stay quiet about other things. “They can say, ‘Look I know you’re smoking weed in there, so you better not complain about the leaky roof,’ ” Eidinger says.
Finding a place for pot
If you feel burned that your landlord won’t let you burn one at home, there’s hope. The D.C. Council earlier this month voted to create a task force to consider regulated spaces where adults can use marijuana. That’s a major reversal from a year ago, when Mayor Muriel Bowser and the council passed emergency legislation to prohibit the use of cannabis outside the home, even in private clubs.
More stories about renting in D.C.