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Should You Include a Marijuana Clause in Your Long Island Residential Lease?

In New York, there’s a lot of confusion about marijuana laws. There is a big push to legalize, and possessing less than 25 grams has been decriminalized.

The public’s sentiment has shifted. For many, marijuana is no big deal.
Medical marijuana is legal, with restrictions, in New York. Pot is still illegal at the federal level.

And these realities raise questions for Long Island landlords.

Including a marijuana clause is legal.

It’s legal to bar marijuana, just as it’s legal to prohibit smoking, or pets. The tenant will know the provision is there and is free to sign or not-sign the lease.

You can prohibit smoking, growing, or both. You can even make it a clause that has nothing to do with marijuana, demanding tenants follow both state and federal law at all times.

You may want a specific exemption for medical marijuana.

Depending on your personal tolerance for it and stance on it, you may decide to make an exception for medical marijuana. If you do, it’s a good idea to have a copy of the tenant’s registry certificate on file.

But as of right now, you don’t have to. No law, either at the federal or state level, demands this accommodation out of landlords.

You may want to include a no-waiver clause.

In some cases, you won’t want to evict a tenant who is violating the marijuana clause. If the tenant is a good tenant who pays on time and doesn’t damage the property, rooting that person out and finding a replacement may require more time or money than it’s worth.

But you want to preserve your right to evict a pot-smoking tenant who does cause problems. The no-waiver clause says you can choose to overlook or enforce a violation as you see fit.

Without this clause, a failure to enforce can come back to bite you. For example, in the 2007 case Eo v. Trane, a New York landlord routinely accepted late payments from tenants. He did not have a no-waiver clause, and the court ruled he’d waived his right to collect late fees and to terminate the lease over late payments.

See also: 5 Overlooked Clauses of a NY Residential Lease.

Including a marijuana clause could be smart.

You don’t want to replace your doors if the cops break them down in the middle of the night. The marijuana smells can be difficult to remove from the drywall, and from carpets. But the risks are about more than property damage.

Allowing pot could impact your ability to get insurance, or even to deposit funds in a federally insured bank. You could even run the risk of civil asset forfeiture, which means losing the whole building to the federal government. This is more of a risk for commercial landlords than for residential, but the risk still exists.

Got questions about including a marijuana clause in your lease? Contact the Law Office of Sami Perez today.