HUD Issues Memo on Use of Marijuana in Multifamily Properties

On Dec. 29, HUD issued a memo, “Use of Marijuana in Multifamily Properties,” on the use of medical marijuana at assisted housing sites. The memo was issued due to questions concerning the use of marijuana at sites in states that allow the use of medical marijuana.

Over the past several years, many states have relaxed restrictions on the use of marijuana for medicinal or recreational purposes. Twenty-three states and the District of Columbia currently have laws legalizing marijuana in some form. And four states have legalized marijuana for recreational use. Alaska and Oregon will become the next states where recreational marijuana is legal after voters recently approved cannabis ballot measures set to become effective this year. District of Columbia voters also recently overwhelmingly approved a ballot initiative legalizing recreational-purpose marijuana that will be subject to Congressional review. Colorado and Washington previously passed similar ballot measures legalizing marijuana in 2012.

Other states have passed medical marijuana laws allowing for limited use of cannabis. Some medical marijuana laws are broader than others, with the types of medical conditions that allow for treatment varying from state to state. And in some states, criminal penalties have been eliminated for possessing small amounts of marijuana.

Marijuana Is Still Illegal Under Federal Law

Under federal law, the Controlled Substances Act (CSA), marijuana is classified as a Schedule 1 controlled substance, which means that it’s considered to have a high potential for dependency and no accepted medical use. The manufacture, distribution, or possession of marijuana is a federal criminal offense, and it may not be legally prescribed by a physician for any reason.

Because the CSA prohibits all forms of marijuana use, the use of “medical marijuana” is illegal under federal law even if it’s permitted under state law. In other words, state marijuana laws don’t change the fact that using marijuana continues to be an offense under federal law, according to the White House Office of National Drug Control Policy, which states: “The Administration steadfastly opposes legalization of marijuana and other drugs because legalization would increase the availability and use of illicit drugs, and pose significant health and safety risks to all Americans, particularly young people.”

Nevertheless, federal officials have relaxed enforcement of federal criminal laws against individuals using marijuana for medical purposes in states where it’s legal. In a 2013 memo, the Justice Department instructed federal prosecutors to defer to state and local authorities regarding prosecuting seriously sick individuals using medical marijuana, while keeping the door open to investigating violations by large-scale marijuana operations.

What Are Site Owners Required to Do?

With regard to questions concerning the use of marijuana at assisted sites in states that have decriminalized the use of marijuana, the controlling authority is Section 577 of the Quality Housing and Work Responsibility Act of 1998 (QHWRA).

Deny admission to marijuana users. Owners are required by QHWRA to deny admission to any household with a member who the owner determines is, at the time of application for admission, illegally using a controlled substance as that term is defined by the CSA. Further, owners may not establish lease provisions or policies that affirmatively permit occupancy by any member of the household who uses marijuana.

Develop policies that allow termination. Section 477 of the QHWRA states in part that owners must develop policies that “allow the termination of tenancy of any household with a member who is illegally using marijuana or whose use interferes with the health, safety or right to peaceful enjoyment of the premises by other residents.”

Use discretion when deciding whether to evict. The HUD notice clarifies that while the use of marijuana is illegal under federal law, owners have discretion on developing policies and procedures for when not to evict a resident for marijuana use under certain conditions.

HUD’s memo makes a distinction between decisions to admit a tenant or to terminate a tenancy. According to the guidance, QHWRA requires owners to prohibit admission to a household with a member who’s determined to be illegally using a controlled substance such as marijuana. And QHWRA also requires owners to adopt occupancy rules that allow the site to terminate the tenancy of anyone who’s illegally using controlled substances.

In other words, while owners are forbidden from admitting a household with a member who uses drugs, owners have “discretion to determine, on a case-by-case basis, when it is appropriate to terminate the tenancy of the household” due to use of a controlled substance, like marijuana. This discretion is implicit in the HUD rules, but the new guidance makes it clearer.