California Medical Marijuana – Landlord Tenant Issues

Q: I am in charge of a collective, and I grow on behalf of other patients in the collective.  I have plants at my own residence, but my landlord just told me that growing the plants somehow violates my lease agreement.  He claims doing it is “illegal”, so I can’t be doing on the property.  Now he’s threatening to evict me.  What should I do?

A: This issue of law is not clear-cut, and every person should be aware that the applicable law depends heavily on the language in the lease contract between the landlord and tenant (assuming a written contract exists).  But, an argument may certainly be made that any contractual provision which prevents a tenant from lawfully possessing or cultivating medical marijuana under California law may not be enforceable to evict a tenant as a result of such possession or cultivation.

The Compassionate Use Act of 1996, as an amendment to the California Constitution, certainly provides a strong policy argument for a tenant’s safe access to medical marijuana, as the law was written “[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician”.  California Health & Safety Code §11362.5.  Where a contract contains an illegal provision, or a term which contains a covenant contrary to an express policy of law, the contract is void as to that term or provision, and not enforceable.  CC §§1599, 1667; Farmers Ins. Exch. v Hurley (1999) 76 Cal.App.4th 797; Discover Bank v Superior Court (2005) 36 Cal.4th 148 (class action waiver in consumer adhesion contract); Kelly v First Astri Corp. (1999) 72 Cal.App.4th 462 (gambling contracts).

Therefore it may be argued that a lease term which prevents the tenant’s lawful use, possession or cultivation of medical cannabis is not enforceable, as California law establishes a strong public policy in favor of a person’s right to use and cultivate medical marijuana.  There, of course, have been numerous California cases that have dealt with the rights of qualified patients to remain free from criminal sanctions pursuant to the MMP and CUA (People v. Mower (2002) 28 Cal.4th 457; People v. Kelly (2010) 47 Cal.4th 1008; People v. Jones (2003) 112 Cal.App.4th 341; People v. Wright (2006) 40 Cal.4th 81, to name a few), but there have also been other cases dealing with the civil rights of medical marijuana patients, specifically the rights to possess and repossess their medical marijuana (County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798; City of Garden Grove v. Superior Court (Kha) (2007) 68 Cal.Rptr.3d 656, 680, 157 Cal.App.4th 355.  (“Medical marijuana is lawful under the terms and conditions set forth in the CUA.”)  Any court may and should consider the policy of well-established law in order to determine that such a contractual term between private individuals cannot supersede such a policy.  Sixells, LLC v. Cannery Business Park (2008) 170 Cal.App.4th 648, 654-655; Espinoza v. Calva (2008) 169 Cal.App.4th 1393, 1400

Analogies may be made to other provisions of law which cannot be superseded by a tenancy contract for the same reason: a strong public policy.  For example, California’s Unruh Civil Rights Act was intended to protect all Californians from discrimination based upon “sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation”, to ensure full and equal accommodation of businesses and establishments.  CC §51(b).  This is a firm principle and policy of California state law.  California Constitution, Art. I, §13; Unruh Civil Rights Act, CC §§51, 52; Hawkins Act, H&S §§35700-35741.  Such a law supersedes what may be written in a residential or commercial lease, regardless of whether the lease contains terms which would otherwise permit discrimination in contradiction to this policy.  Burks v. Poppy Constr. Co. (1962) 57 Cal.2d 463, 468; Lee v. O’Hara (1962) 57 Cal.2d 476, 478.   So should a landlord, for example, draft a provision of a lease which states he does not have to provide access to handicapable persons under the Americans with Disabilities Act, such a term arguably would not be enforced by a court of law.

As stated, such an argument heavily depends upon the individual facts and circumstances of the case.  If you or someone you know is concerned about their landlord evicting them as a result of the exercise of their rights under the Compassionate Use Act, you should find an office of legal professionals familiar with both landlord/tenant law and medical marijuana law. Beck Law P.C. can furnish the experience and knowledge to help guide you through the complexities of California Medical Marijuana law.
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