In the “Weeds” of Residential Leases

By Melanie C. Hagan posted 06-26-2017 12:08


We’ve written before about a package of bills concerning medical marijuana (2016 PA 281282283) that went into effect on December 20, 2016. Those bills not only amended the Michigan Medical Marihuana Act (MMMA), they also added two new bills representing a “pervasive regulation of medical marijuana activities.” The Facilities Act created a licensing board, and the Tracking Act established a statewide monitoring system to track marijuana inventory.

In April 2017, another medical marijuana─related amendment of particular importance to residential landlords went into effect. 2016 PA 546. Before this amendment, there was some confusion about whether residential landlords could prohibit tenants from smoking or growing medical marijuana or whether they could terminate a lease based on medical marijuana use. A 2011 attorney general opinion had concluded that the MMMA did not preclude the owner of an apartment building from prohibiting the “smoking of marihuana or the growing of marihuana plants anywhere on the premises.” MCL 333.26427(c)(3) now makes clear that “nothing in [the MMMA] shall be construed to require … [a] private property owner to lease residential property to any person who smokes or cultivates marihuana on the premises, if the prohibition against smoking or cultivating marihuana is in the written lease.”

Two things should be noted here. First, the question about whether a residential landlord can prohibit nonsmoking types of marijuana use remains. The definition of “medical use of marihuana” was expanded by the recent amendments to include use of “marihuana-infused products.” MCL 333.26423(h). Second, the amendment places the onus on the landlord to make clear in the written lease that marijuana smoking and growing is prohibited.

For more discussion of the recent marijuana-related statutory amendments, see Michigan Municipal Law, chapter 17, and Medical Marijuana: Representation of Regulated Entities.