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10.08.2019 Virginia Landlord Considerations for Tenant Use of Marijuana By: Tyler J. Rosá

Although Virginia remains ones of the stricter states in the nation when it comes to marijuana use, the General Assembly has shown some movement toward loosening those restrictions. On March 9, 2018, a new law took effect that allowed for use and dispensing of cannabidiol (CBD) to alleviate the symptoms of any diagnosed condition or disease. Prior law limited use of CBD oil to treat only intractable epilepsy. Expanding CBD oil is a minor step down the road towards legalizing marijuana throughout the Commonwealth, but a bill introduced during the 2019 Session show that advocates for expanded marijuana laws hope to maintain the momentum. HB 2373 sought to legalize simple marijuana possession and impose a tax regime on marijuana sales. The bill died in Committee but as long as the national sentiment continues to shift towards the loosening marijuana laws, expect more bills similar to HB 2373 to appear in the General Assembly.

As marijuana laws loosen and views on marijuana use evolve, landlords should revisit their leasing documents to ensure they properly reflect their position on tenant use of marijuana on the premises. Even if marijuana was legal under Virginia law, there are other reasons why a landlord would not want tenants using or cultivating marijuana on site:

  • Loan documents require compliance with both state and federal law so allowing marijuana use on site could result in a breach of loan documents for violating federal law;
  • Cultivating marijuana for personal medical use is energy and water intensive, which can drive up energy costs and increase the risk of mold;
  • Smoke damage to the unit;
  • Insurance companies do not cover damage caused by illegal activities.
     

In those states that allow recreational marijuana use, landlords often develop specific marijuana policies to regulate marijuana use on the property to address the myriad landlord considerations that go with legalized marijuana.

In states like Virginia, however, where marijuana is still illegal, landlords may rely on default lease language that prohibits illegal drugs or activity in regulating marijuana use on the premises. Nevertheless, relying on such default anti-drug or illegal activity provisions provides room for interpretation and potential leniency by a court interpreting marijuana use as a breach of the lease agreement. Rather than relying on default provisions that require interpretation, the lease agreement can be amended to specify marijuana as a prohibited substance. In that situation, the tenant will have contractually agreed to not use marijuana on the premises and leave little room for a court to be swayed by public sentiment or evolving views on marijuana use.