In the case of a tenant with a fixed-term lease, a contractual relationship between the tenant and the landlord is created for the amount of the term. The premature termination of a fixed-term lease constitutes a breach of contract, and thus, according to the marijuana law as a tenant, a landlord must have “just cause” to terminate a fixed term lease in order to evict the tenant.
The issue of whether smoking marijuana provides a landlord “just cause” to evict a tenant is one that has yet to be decided in California. The following three reasons may be considered “just cause” in the case of a toking tenant: (1) breach of an enumerated term of the lease; (2) nuisance; and (3) drug dealing.
Breach of an enumerated term in the lease, is the landlord’s strongest argument for evicting a tenant for smoking marijuana. If the lease expressly states that marijuana smoking will not be tolerated, then it is expressly prohibited by contract. Thus, smoking marijuana in your unit is a breach of contract, and the breach provides the landlord with “just cause” to evict. One gray area may be where the lease specifically states “smoking” is prohibited. Always look to see if the term “smoking” is defined in the lease. If not, the toking tenant may have an argument that they could not have reasonably inferred the smoking of marijuana to be included.
If a tenant causes a nuisance, this could also provide just cause for the landlord to evict. In the case of marijuana, the nuisance is usually created by the smell or by the smoke. A tenant has a Right to Quiet Enjoyment of the property which they lease, and the landlord is required to provide that quiet enjoyment …for all tenants. Thus, if a marijuana smoker’s smoke is creating a nuisance for the other tenants in the building, then the landlord may have just cause to evict the smoker. However, the toking tenant also has a Right to Quiet Enjoyment of their unit, and thus may be able to make an argument that this Right includes the ability to smoke marijuana in their own home.
Finally, drug dealing, or selling marijuana from the property will provide a landlord with just cause to evict that tenant. Marijuana is classified as a Schedule I drug under the Controlled Substances Act. Marijuana in itself just became legal under California law with the recent passing of Proposition 64 by California voters. Until recently, it was an illegal substance, the mass sale of which is considered drug dealing. Even so, it is important to make the distinction that possession of marijuana (note that lawful possession is capped at 28.5 grams) and the smoking of marijuana is not considered drug dealing.
Despite all of this, there may be hope for those who possess medical marijuana cards, as medical marijuana is legal in California. In support of their use, the toking tenant may wish to point to the Compassionate Use Act of 1996, which allows those who have received an appropriate recommendation, or physician approval, to possess and cultivate marijuana for their personal medical use. Additionally, the toking tenant may wish to point to California’s Unruh Civil Rights Act which was intended to protect all Californians from discrimination based upon, among other things, disability and medical condition to ensure full and equal accommodation of businesses and establishments. As a precaution, be sure to stay away from looking to federal laws, for the time being, as they have refused to protect medical marijuana users thus far. See Ross v. Raging Wire Telecommunications (2008) 42 C4th