Landlord/tenant Q&A with DARLENE HIGA (RA), MPM, RMP

Q. I received a complaint from a neighbor about my tenant smoking marijuana in the unit. They have small children and don’t want them exposed to the smell and smoke. When I confronted my tenant, he said he had a medical marijuana card so he was allowed to do so by state law. What are my rights as a landlord? I understand it’s still illegal under Federal law so what am I supposed to do?

A. This is a topic that is being discussed more and more, not only in Hawaii but all over the country. Yes, the manufacture, distribution, or possession of marijuana is still a Federal criminal offense, but the Department of Justice has previously stated and affirmed in 2014 that they will defer to state law regarding the legal use of marijuana.

Under Hawaii state law, medicinal use of marijuana is allowed. In 2014, HRS 521 was amended to include that any provision in a rental agreement allowing for the eviction of a tenant who has a valid certificate for medical use of marijuana in any form is void, unless the rental agreement allows for eviction for smoking and the medical marijuana is used by means of smoking.

Regarding any Fair Housing discriminatory issues, HUD has not given any official guidance regarding the use of medical marijuana in private housing accommodations. The general consensus is that it is unlikely HUD would pursue a Federal Fair Housing claim for refusal to permit the use of medical marijuana.

So what do you do regarding your tenant? You may still enforce no smoking rules if you have that in your lease and prohibit him from smoking in the unit. If he persists, you can terminate his lease. This would not be an issue of “marijuana use” but one of violating a “no smoking” policy.

If Governor Ige signs the current dispensary legislation, we may eventually see marijuana sold is edible forms such as brownies, cookies, etc., providing alternatives to smoking.

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