On the eve of the midterm elections, it is more likely than not that Michigan voters will approve Proposal 1, thus enacting the Michigan Regulation and Taxation of Marihuana Act (“MRTMA”) and making recreational marijuana legal in Michigan. What does this mean for residential landlords?
Previously, the Michigan Legislature amended the Michigan Medical Marihuana Act (“MMMA”) to clarify that landlords may prohibit tenants from growing or smoking marijuana if that prohibition is contained in a written lease. Nearly all of our landlord clients prohibit manufacture or possession of marijuana due to strong odors and annoyance to other tenants, damage to the premises caused by high humidity in grow operations, fire hazards from haphazard lighting, etc.
The MRTMA, if passed, does little change to this. Section 4(4) of MRTMA provides that “This act allows a person to prohibit or otherwise regulate the consumption, cultivation, distribution, processing, sale, or display of marihuana and marihuana accessories on property the person owns, occupies, or manages, except that a lease agreement may not prohibit a tenant from lawfully possessing and consuming marihuana by means other than smoking.” In other words, landlords may still prohibit tenants from growing, selling, and using marijuana except that a lease may not prohibit mere possession or non-smoking use, such as through edible cannabis products.
All of the above, of course, is a matter of state law. As possession of marijuana remains illegal as a matter of federal law, it will be interesting to watch federal and state law butt heads in the coming years. For example, if a landlord prohibits possession on a rental property, can the landlord argue section 4(4) of the MRTMA is preempted by federal law? Should a landlord’s property be put at risk of a federal forfeiture action because the landlord obeyed state law and allowed possession? Stay tuned….