Proposition 19 "legalizes" marijuana for personal use, right? So tenants should be free to grow their personal pot gardens and their landlords should have no problems with that. Well, not exactly. First, let's take a look at what Prop 19 legalizes and what it doesn't.
On the question of personal use, if the voters pass the initiative, it will be legal for individuals to possess up to one ounce for personal consumption, smoke in private spaces and grow a pot garden for personal consumption up to 25 square feet.
So does that mean that tenants can start clearing weeds for their "25 for 420" as soon as they move in to a rental? Definitely not. The proposition clearly states: "Cultivation on leased or rented property may be subject to approval from the owner of the property." (Proposed Health & Safety Code section 11300 (a)(ii).)
In other words, tenants need their landlords' approval to do what they would be able to do freely if they owned the property themselves. This raises some interesting issues. Indeed it puts landlords in an absurd Catch-22.
Marijuana is still a controlled substance under federal law. Regardless of what the state law says, growing ganja is a crime. And homeowners who know their property is being used for illegal drug cultivation are subject to having their property seized by the federal government under civil forfeitures statutes. The government doesn't even have to file a charge or obtain a criminal conviction. They just have to show probable cause of the property's (home's) involvement in the "crime."
The only defense to property seizure is that the homeowner had no knowledge of the use.
So, as a landlord, are you going to put in writing - say, a legally binding lease agreement - that your tenant can grow marijuana on your property??? Even an oral agreement would defeat the ignorance defense. Given the risks, any landlord would be certifiable to put consent in writing and well-advised not to give oral consent, either.
Now, you say, those federal seizure laws are aimed at large-scale grow houses, not 5x5 plots of pot. And, you might add, the Obama Administration has vowed to respect California's medical marijuana laws, so isn't there little risk that the feds are going to come after individual homeowners for a tenants personal use garden, legal under state law?
Actually the Dept. of Justice directive under Attorney General Eric Holder says that prosecuting medical marijuana is not a priority but that prosecuting non-medical use remains a priority. And, anyway, that policy might change when President Sarah Palin appoints Christine O'Donnell as the next attorney general.
Large corporate landlords could be looking at thousands of plants being grown on their complexes. Suddenly, the benign-sounding phrase "consent of the property owner" becomes untenable.
Tenants, I don't think you're going to get your landlords to consent to your personal pot gardens under the new state law. That means tenants will grow gardens without consent, just as they do now. I doubt that police forces will be interested in prosecuting growers within the 5x5 limit regardless of whether it's legal or not, but the issue for tenants will become this: When the landlord finds out, can she evict you for illegal use of the premises? Can a lease forbid you from growing your personal stash?
Under current law, it's pretty clear that growing marijuana on the landlord's property would subject a tenant to eviction on the grounds that they are creating a nuisance. Would the fact that the growth is approved by state law forbid eviction in a state court?
Nope. I think you'd have to have a clause in a lease - or a least a signed letter from the landlord -- that permitted the personal-use garden in order to combat the nuisance eviction.
Under the terms of Prop. 19, consent of the landlord can be required. Thus, it seems clear that leases can specifically refuse to allow pot gardens.
Finally, it is OK that the law treats tenants and homeowners differently? Since a "leasehold" gives the tenant exclusive control of the premises and since the personal use garden is a legal activity under state law, why should landlords be given the right to infringe on that right? Since a lease is a contract the parties can waive many legal rights - the right to smoke, for instance. Only a few rights - the right to habitable conditions, say - cannot be contracted away.
The right to pot is not a particularly compelling one, indeed under federal law, it's not right at all, so tenants will find themselves signing away that right, unless they can find a landlord who agrees to let them keep their pot rights.
Good luck with that.
