Can Your Landlord Stop You From Smoking Pot?

Since Initiative 71 took effect in February, legalizing recreational marijuana use in DC, city residents have been groping their way toward how we smoke now. Most weekends, a man calling himself Mr. Kush God parks in Adams Morgan or on U Street and distributes marijuana edibles for a “donation.” Developer Eric Hirshfield has added a grow closet for pot plants to a newly renovated condo project in Northwest DC. We think it’s all okay.

Until it’s not. Last winter, tenants in the 95-unit La Reine in Chevy Chase DC received a notice not only prohibiting them from using or possessing marijuana—even for medical purposes—but also requiring them to promptly inform the landlord of their neighbors’ violations.

Tenants found out about the rule when their landlord, Kossow Management, slipped a notice under their doors, says Jon Greenberg, president of the building’s tenants association. At a meeting in March, residents aired their concerns, mostly agreeing that DC’s newly sanctioned activities weren’t likely to disrupt their neighbors. The snitching provision was roundly criticized. “People didn’t like the idea that they were supposed to inform on others,” says Greenberg. “It just felt creepy.”

It’s also most likely wishful thinking. “I’ve seen a zillion leases but never one like that,” says Jonathan Schuman of Schuman & Felts, a law firm that represents building owners. “It would be very difficult to enforce.”

Real-estate attorney Aaron Sokolow compares the pot clause to prohibiting the consumption of broccoli. While there’s a legitimate purpose to forbidding, say, tobacco—which La Reine management allows—it’s much harder to ban activities that are harmless, says Sokolow.

Kossow Management, which bought La Reine in 2011, declined to comment. But a lease furnished to Washingtonian points to federal law as the basis for the prohibition and claims that violations “may result in enforcement by government authorities.”

But that, too, is less than clear. Initiative 71 specifically states that it won’t interfere with a landlord’s ability to regulate cannabis, but no lawyer we spoke to thought Kossow’s clause would stand up in court. Due to protections for people with disabilities, a ban on medical marijuana is even shakier. Blind residents in a no-pets building, for instance, are allowed a service animal.

Then again, owning a pet isn’t a federal crime. “This is an interesting question about the intersection of local and federal law,” says Monica Hopkins-Maxwell, executive director of the American Civil Liberties Union of the Nation’s Capital. Clarity, in other words, will come only with test cases. “You’d need a landlord to try to enforce that clause, and you’d need a tenant to fight it,” says Paul Zukerberg, a DC defense lawyer whose advocacy helped spur cannabis reform. In federally owned public housing, he notes, users are still regularly evicted.

Which leaves those in the gray area more or less where they were before. “There’s all different sorts of questions,” says Zukerberg. “We may never have a chance to get to them.”

This article appears in our December 2015 issue of Washingtonian.