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Q: Landlord Liability for prop 215 certified cannabis cultivation by tenant ( Answered 5 out of 5 stars,   3 Comments )
Subject: Landlord Liability for prop 215 certified cannabis cultivation by tenant
Category: Relationships and Society > Law
Asked by: prop_215_patient-ga
List Price: $50.00
Posted: 24 May 2006 18:15 PDT
Expires: 23 Jun 2006 18:15 PDT
Question ID: 732161
I am a registered California Prop 215 patient who uses cannabis to
treat muscle spasms from degenerated discs in my back.  Prop 215
allows for self cultivation of medicine and I have a current 'growers
permit'.  I grew medicine at my last rental home and just started
growing (less than half the permitted amount) at my current rental
home but my landlord, who is otherwise friendly toward medical
cannabis, was informed by a friend that my plants make him liable to
have his house seized by law enforcement.

From the patient side, there is no requirement in Prop 215 that a
landlord be notified if a patient desires to cultivate their own
medicine, so I find it hard to believe that a landlord could be
liable in this way.  I believe it is difficult and unusual to do
such seizures even for owners of crack houses.

My questions are along the following lines:

1) Does a CA landlord have a legal right to request that licensed 215
cultivation not occur on his property if it is not causing a nuisance,
danger, etc... and he has received no complaints about it?  What about
other things like growing tomatoes or practicing yoga?  What types of
restrictions are allowed and which would violate a tenants right to
use the property as they see fit?

2) Would a CA landlord have a legal right to evict a tenant if they refused
to stop cannabils cultivation which satisified the legal requirements of
prop 215?  If the cultivation is not illegal under California law, can
it still be a legal cause for eviction in California?  Perhaps, due to
the Federal law?

3) If the answers to the above questions are that he cannot lawfully
restrict this particular use of his property and it is not lawful to
evict a person for it, could he still be liable for property seisure
or penalty for this kind of activity on the part of a tenant?  It might
not be logical, but maybe this is one of those legal conundrums.

Postscript: I like my landlord, who lives next door, and I don't want
to place him in any kind of legal jeopardy.  However, growing my own
medicine myself saves me thousands of dollars a year.  I don't want to
spend thousands needlessly just due to paranoia.  If there is a real
risk I want to know about it, and if the paranioia is unjustified
I need some evidence to help quell his fears.

Subject: Re: Landlord Liability for prop 215 certified cannabis cultivation by tenant
Answered By: hagan-ga on 26 May 2006 06:58 PDT
Rated:5 out of 5 stars
Hello, Prop215Patient.  I hate like heck to have to give you this
answer, because I believe strongly in Prop 215 and I don't think the
Feds have any business interfering in the State regulation of medical
treatment -- but your landlord is DEFINITELY at risk of forfeiting his
property, and as a result, has a legal right to forbid the cultivation
of cannabis on his property.

This is awful; it's wrong; but it's the state of the law right now. 
Let me explain the details.

Federal law strictly forbids the cultivation of cannabis, whether for
sale, personal use, medical use, or whatever.  It's forbidden by
Federal law, and that Federal law applies in California irrespective
of Prop 215.  Federal law in this regard trumps State law -- and the
Supreme Court has recently upheld the Feds' right to do as they please
in this area.

Read the case of _Raich v. Gonzalez_ (2005) at
and discussion at

In _Raich_, two California medical marijuana patients sued after the
DEA raided their private homes and destroyed their medical cannabis. 
There was no question that the two patients were in serious need of
cannabis; doctors testified that one of them was in such excruciating
pain without it that her life was in danger.  DEA didn't care.  The
Supreme Court held that the Federal law prohibiting cannabis
cultivation could be enforced in California, even in the face of Prop
215 expressly permitting it.  So the Feds can still enforce ALL of the
Federal laws against cannabis cultivation, whether you have a State
permit or not.

One of those Federal laws allows the Feds to seize property that's
being used for cultivation.  And yes -- the Feds have used it, and
seized property in California.  More to your point, the Feds have
seized property that DID NOT BELONG to the cultivator, that belonged
to a landlord.  The landlord LOST HIS PROPERTY because he allowed
medical cannabis to be grown.

"Another federal weapon against medical marijuana is property
forfeiture. Federal law allows the government to forfeit real estate
from owners or landlords who let it be used for marijuana distribution
or cultivation.  The DEA successfully used forfeiture against the Los
Angeles Cannabis Resource Center in 2001.  The LACRC's building was
actually owned by the city of West Hollywood, which had bought it as a
gift for the club.  The government had no trouble taking possession of
it by means of forfeiture, effectively closing the LACRC. More
recently, the government invoked forfeiture to close the  Capitol
Compassionate Care center in Roseville and to force a landlord to
evict another dispensary in West Hollywood.  The DEA has threatened to
employ forfeiture more widely.  So far, the chosen targets have mostly
been facilities that actively sought publicity through the media or
advertising.   Dispensary operators are advised to operate discreetly
to avoid DEA attention."

See for a
description of a few of these raids.  Note that the article was
written before the Supreme Court decision in _Raich_, and expresses
hope that the Supremes would find in favor of the cannabis patients so
there would be no more raids.  Well, we now know how that turned out
-- so you can expect the DEA to be even MORE aggressive since they
have the Supreme Court's blessing.


The Federal civil forfeiture statute is here:
It renders real property subject to forfeiture if it is "used, or
intended to be used" to commit any drug-related crime that is
punishable by more than a year in jail.  Since Federal law makes
cultivation of cannabis a felony, punishable by 5 years to life
depending on amount, cultivation of cannabis is one of the acts that
renders real property subject to forfeiture.

There is such a thing as an "innocent owner" defense under the
forfeiture laws.  But it would be the landlord's burden to prove, not
only that he himself was innocent, but also that he had either not
known about the cultivation, or that upon learning of the cultivation,
"did all that reasonably could be expected under the circumstances to
terminate such use of the property."

Since this cultivation could result in the landlord's property being
seized by the Feds, he has the right to prohibit it.  I'm very, very
sorry to have to tell you this.  It's wrong, wrong, wrong -- but it's
the state of the law right now.

Best wishes, and if there's any more help I can give (yeah, like this
was a helpful answer), please just ask for clarification.
prop_215_patient-ga rated this answer:5 out of 5 stars
Thanks for the well researched answer.  You definitely answered the
questions I asked.  However one thing still confuses me.  In the
CANORML legal manual there is this recommendation:

Some leases may include prohibitions on use, cultivation and
distribution of controlled substances, which includes medical
marijuana. To best protect your safe access to medical marijuana and
protect your landlord from being victimized by the drug war, ASA
recommends taking a "don't ask, don't tell" approach. Simply be a good
neighbor, and quietly go about meeting your medical marijuana needs.

If what you say is correct, this is not a very good recommendation
because it won't protect them very well from liability.

Subject: Re: Landlord Liability for prop 215 certified cannabis cultivation by tenant
From: daniel2d-ga on 25 May 2006 22:12 PDT
Your rental agreement governs your relationship with the landlord.  He
can only enforce provisions that are in the contract.  Most contracts
prohibit illegal activity.  If the activity is legal under state law
but illegal under federal law then it probably would fall under the
illegal activity provisions of the agreement.  Instead of growing it
you could purchase it.
Subject: Re: Landlord Liability for prop 215 certified cannabis cultivation by tenant
From: myoarin-ga on 26 May 2006 02:47 PDT
Landlords in California are generally at risk when cannabis is found
on their property, which is probably the what the friend of your
landlord was talking about.  Apparently prop. 215 makes an acception
to this.  You need accurate legal information to convince him and to
protect yourself.  Once a raid has occurred, correcting the situation
could be more than just a nuicance.  Perhaps there is a way to
register your prop 215 authorization with local law inforcement.  You
could ask them.

I hope that you get a good answer here.
Subject: Re: Landlord Liability for prop 215 certified cannabis cultivation by tenant
From: hagan-ga on 01 Jun 2006 06:28 PDT
Prop215Patient, thanks for the five-star rating on what must have been
a disappointing and frustrating answer.  I know I was disappointed and
frustrated with it!
With respect to CANORML's advice, I think you have to look at it from
CANORML's perspective.  They aren't trying to protect the landlord. 
They're trying to help medical cannabis patients meet their own needs
and not lose their apartments or rented homes.  And if the medical
cannabis patient does "quietly" grow their medication, then maybe the
landlord can claim the "innocent owner" defense, that he did not know
or have any reason to know of the cultivation.
But CANORML's main concern is with the access to medication, not the
landlord's liability.
Anyway, thanks again.  I wish the answer could have been different.

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