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Medical Marijuana in Rental Properties in Michigan

in Property Management - Various Topics

A lot of questions have arisen around the use and sale of medical marijuana in rental properties since the State of Michigan voters made using, growing and selling medical marijuana legal. Do I have to allow my tenants sell pot? Can a tenant grow dozens of plants in my unit without my permission? What if I have a non-smoking policy? Do I have to allow smoking of pot if I prohibit smoking generally?  And, many more.

Public Act 546 of 2016, signed into law in January 2017, and effective 90 days from enrollment, allows rental property owners to disallow the smoking and cultivation of medical marijuana in a written lease or an addendum to a lease.  In other words, whether or not to allow smoking and growing of medical marijuana is now clearly up to the rental property owner. However, the new law does not address selling medical marijuana.  So, let’s look at how to handle smoking, cultivation and selling of medical marijuana separately.

Do I have to allow my tenants to smoke medical marijuana?

No.  Under PA 546 of 2017 landlords no longer have to allow their tenants to smoke medical marijuana.

Do I have to allow my tenants grow medical marijuana?

No.  Under PA 546 of 2017 landlords no longer have to allow their tenants to cultivate medical marijuana.

Do I have to allow my tenants to sell medical marijuana if they are “registered medical marijuana caregivers?”

Maybe Not.  Since PA 546 does not address the sale of medical marijuana, landlords need to look other places to decide whether or not to allow the sales of medical marijuana out of their units.

First, selling marijuana is still illegal under federal law. The federal government regulates drugs through the Controlled Substances Act (CSA) (21 U.S.C. § 811), which does not recognize the difference between medical and recreational use of cannabis. Many Michigan attorneys have advised their landlord clients that if their lease does not allow violations of Federal law, they can disallow the selling of medical marijuana—but, be advised; the jury is still out on this one.

Second, landlords should check with their local community about regulations and ordinances regarding caregivers and home occupations. They may be able to disallow the sale of medical marijuana due to local zoning or other laws.

Under State law, anyone that wishes to grow and provide marijuana to patients is called a “registered medical marijuana caregiver.” Some cities have passed specific ordinances controlling who can be a caregiver and where and how they can provide the service. The City of Grand Rapids has passed specific ordinances controlling how this business can be operated. Other cities either do not have laws regarding the topic or they are pondering an ordinance to completely outlaw the activity—contrary to State law. You’ll need to check with your local government to discover the local laws and regulations.

The City of Grand Rapids uses the zoning code to provide parameters for caregiver operations. Under the code, caregivers are classified as a Class B Home Occupation. There are many rules around how a Class B can operate. A complete list of the restrictions/parameters can be found in Section 5.9.13 Home Occupations section of the Grand Rapids’ code. Some of the laws that a landlord may wish to be aware of are:

  • Class B home occupations must be licensed by the City.
  • “Walk in” trade is prohibited.
  • No signs are allowed.
  • Not more than one-fourth (¼) of the living area of the dwelling unit and less than one-half (½) of the living area of the main floor shall be devoted to the home occupation.
  • No part of an accessory structure, either attached or detached shall be used.
  • In no instance shall one or more home occupations in any single dwelling unit permanently occupy more than three hundred (300) square feet of the dwelling unit.
  • Home occupations shall not require exterior alterations or involve construction features not customary in dwellings, or require the use of mechanical or electrical equipment which shall create a nuisance to the adjacent neighborhood.
  • Any permanent structural alterations to the interior of the dwelling unit for purposes of conducting the home occupation which would render it unsuitable for residential use shall be prohibited.
  • The activity shall not require the creation of any additional parking spaces to service the home occupation.
  • Visits by customers, clients, students or patients to licensed Home Occupation – Class B location shall be limited to the hours of 7am to 8pm.
  • Nothing in the Code, or in any companion regulatory provision adopted in any other provision of the Code, is intended to grant, nor shall they be construed as granting, immunity from criminal prosecution for growing, sale, consumption, use, distribution, or possession of marijuana not in strict compliance with that Act and the General Rules.
  • Also, since Federal law is not affected by that Act or the General Rules, nothing in this Chapter, or in any companion regulatory provision adopted in any other provision of this Code, is intended to grant, nor shall they be construed as granting, immunity from criminal prosecution under Federal law.
  • The Michigan Medical Marijuana Act does not protect users, caregivers or the owners of properties on which the medical use of marijuana is occurring from Federal prosecution, or from having their property seized by Federal authorities under the Federal Controlled Substances Act.
  • The following requirements for a registered primary caregiver shall apply:
    1. The medical use of marijuana shall comply at all times and in all circumstances with the Michigan Medical Marijuana Act and the General Rules of the Michigan Department of Community Health, as they may be amended from time to time;
    2. A registered primary caregiver must be located outside of a one-thousand (1,000)-foot radius from any school, including child care or day care facility, to ensure community compliance with Federal “Drug-Free School Zone” requirements;
    3. Not more than one (1) primary caregiver shall be permitted to service qualifying patients on a parcel;
    4. Not more than five (5) qualifying patients shall be assisted with the medical use of marijuana within any given calendar week;
    5. All medical marijuana shall be contained within the main building in an enclosed, locked facility inaccessible on all sides and equipped with locks or other security devices that permit access only by the registered primary caregiver or qualifying patient;
    6. All necessary building, electrical, plumbing and mechanical permits shall be obtained for any portion of the residential structure in which electrical wiring, lighting and/or watering devices that support the cultivation, growing or harvesting of marijuana are located;
    7. If a room with windows is utilized as a growing location, any lighting methods that exceed usual residential periods between the hours of 11pm to 7 a.m. shall employ shielding methods, without alteration to the exterior of the residence, to prevent ambient light spillage that may create a distraction for adjacent residential properties; and
    8. That portion of the residential structure where energy usage and heat exceeds typical residential use, such as a grow room, and the storage of any chemicals such as herbicides, pesticides, and fertilizers shall be subject to inspection and approval by the Grand Rapids Fire Department to ensure compliance with the Michigan Fire Protection Code.

Therefore, landlords can possibly control the use of their property for the selling of medical marijuana by two different methods.  If you’re going to disallow the sale of medical marijuana, it is prudent to check with an attorney familiar with local laws and with Michigan’s medical marijuana law.

If you do choose to allow or disallow the smoking, growing, or selling of medical marijuana, your lease covenants and rules should be applied equally for all units at a property.  If you disallow home occupations at a property, do not single out caregivers—disallow ALL home occupations.

If you choose to allow a caregiver to operate out of your property, you may want to dig deeper into the restrictions above and establish criteria, rules, regulations, etc. that mirror the City’s intent within the code. This could be done simply by referencing the code and providing the caregiver with a copy of the code. At the very least, you are going to need to verify that the caregiver has the proper credentials under State Law and the local code.

What’s the bottom line?

  • Decide if you will allow the smoking of medical marijuana.  If you will not allow it, add the proper provisions to your lease or addendum.  If you want to change the provisions in an existing lease, follow the proper protocol for making changes to an existing lease.
  • Decide if you will allow the cultivation of medical marijuana. If you will not allow it, add the proper provisions to your lease or addendum. If you want to change the provisions in an existing lease, follow the proper protocol for making changes to an existing lease.
  • Decide if you will allow the selling of medical marijuana.  If you do, establish lease terms and conditions, property rules and regulations based upon State and local laws regarding the operation of home-based occupations/businesses and medical marijuana.

What about allowing the use of edibles or medibles?

PA 546 does not address edibles or medibles.   The use or possession of marijuana is still a Federal crime; however, the jury is still out on whether or not that will be an adequate defense if a landlord disallows edibles or medibles.  Consult with your attorney and draft the proper lease or addendum language.  Also, fair housing advocates may claim that, since the state law allows the use of edibles or medibles, landlords must make a reasonable accommodation for patients in need of medical marijuana and allow those tenants to use these forms of medical marijuana.

 

Disclosure: This Knowledge Base article is accurate as of the last update.  Laws and policies are subject to change.  If you have any questions, please call the office.  Click here for contact information.

Clay Powell