Marijuana, Utilities

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Q: My apartment building has always been a nice and quiet community, no bother, no worries. Everyone keeps to themselves; never have complaints about behavior. Well, that all changed when my manager let down her guard and didn’t fully screen my newest residents!

Ever since these two characters moved in, flashing me their “doctor’s note” saying they could smoke pot, they’ve been puffing away ever since. Apparently they claim to be “disabled” and that because they are “disabled” they get to do whatever they want. Huge clouds of smoke literally billow out of their apartment! I’m concerned about lots of things, but mostly, the little girl who lives next door, I believe that she’s asthmatic. How much more of this must I, and the neighbors, take?

A:
The audacity of some medical “professionals” to abuse and game the system by willfully pro scribing the use of “medical marijuana” to non-disabled fraudsters is an affront to all truly disabled persons.

As of this writing, the use of marijuana, medical or otherwise, is still illegal under federal law; however, the federal government has elected to stay any enforcement and prosecution for the use and/or possession of “medical marijuana.”

California legalized the recreational use of marijuana, which allows for the possession of a limited amount of marijuana, for personal use, provided certain requirements are met. Marijuana smoking is restricted by location. It may not be smoked wherever smoking is prohibited by law, within 1,000 feet of a school, recreation center, or youth center, on a school bus, or in a moving vehicle or boat. The right to “smoke” marijuana in your apartment community is not automatic, and will depend upon the individual facts of each case. The use of nonmedical marijuana is technically illegal under federal law and, as such, cannot be used or smoked anywhere, including your community, and may be grounds for termination of their tenancy.

The use of medical marijuana requires that the user be disabled, and the disability must be “verifiable.” Additionally, the disabled individual must request a “reasonable accommodation” from you, the housing provider, prior to just lighting up. Once the disabled person makes the request for a reasonable accommodation, you are obligated to consider the request, and attempt in good faith to accommodate the request in a reasonable manner. The accommodation does not necessarily require you to “grant” the request outright, but you must make a good faith effort to provide an accommodation that addresses the disability, but does so in such a manner that it does not unreasonably “burden” you, the housing provider. The courts will apply a “benefit to the requestor” versus a “burden to the housing provider” standard in determining whether or not you met your obligation to reasonably accommodate the disability.

In your specific situation, the initial hurdle for your new residents to surpass is to establish that one or both truly has a “verifiable” disability. A “doctor’s note,” provided it has not been forged, although highly suspect, will generally satisfy the extremely low threshold here in California. The reasonable accommodation, their request to smoke willy-nilly within the apartment, must be balanced with the “burden” to you, the housing provider, and those other residents that might be affected, i.e., the asthmatic child living next door. It is conceivable and probably likely that an asthmatic child, when exposed to the smoke billowing from next door, might have a devastating and fatal reaction. Certainly the neighbor child, with a truly verifiable disability of asthma, is entitled to be free of the exhaled smoke as a “reasonable accommodation” for her verifiable disability.

When balancing the benefit to “Cheech and Chong” of being able to light up in their apartment, with the burden to you as well as the extreme life threatening burden to the asth matic child, courts would most likely find that a reasonable accommodation would be to prohibit the smoking of the marijuana within the apartment unit or in any place that might affect the asthmatic child or others with such a sensitivity to smoke; but to provide an area within the community, possibly a portion of the outdoor common area, that may be used for the smoking of their medical marijuana. Alternatively, there are other methods of delivering the active ingredient in marijuana, i.e., ingestion, pills or tablets, food based, etc.

Remember, reasonable accommodation issues are extremely fact-sensitive and the analysis is dependent on a proper review of the relevant facts. Always contact an experienced attorney when faced with a request for a reasonable accommo dation, as the issues are typically complex and a reasoned response must be made in a timely manner.

Q: My new tenants just moved in a month and a half ago. The lease requires that the tenant pays for all utilities, and must put the utilities in their own name prior to moving in. Well, I just received the electric bill and it’s still in my name. I’m thinking about not paying it, just letting it get shut off. Maybe when the lights go out, they’ll take care of it. Can I do that?

A:
No, you cannot let the utilities be shut off. Your tenant’s actions are a breach of the rental agreement and must be addressed in compliance with California law. You should immediately prepare and serve a Notice to Perform or Quit - Breach of Covenant notice. The notice should identify the specific breaches, the failure to place the electric utility in their own name, and their failure to pay the utility charges incurred since taking possession. The notice should be specific as to how they must cure the breach, namely, they must put the utilities in their name, and reimburse you for the amount of utility changes that have been billed and incurred post tenancy.

Note that some jurisdictions may require that you include a statement identifying a witness who observed the breach, as well as the date and time of the breach. In such jurisdiction, you or your manager would suffice as the witness, and the breach would be considered “ongoing” as it continues to occur. In the event of non-compliance, you would be entitled to file an unlawful detainer action to recover possession of the premises. Rarely though is that necessary, as the vast majority of residents will immediately comply.


This article is presented in a general nature to address typical landlord tenant legal issues. Specific inquiries regarding a particular situation should be addressed to your attorney. Stephen C. Duringer is the founder of The Duringer Law Group, PLC, one of the largest and most experienced landlord tenant law firms in the country. The firm has successfully handled over 255,000 landlord tenant matters throughout California, and has collected over $155,000,000.00 in debt since 1988. The firm may be reached at 714-279-1100 or 800-829-6994. Please visit www.DuringerLaw.com for more information.

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California Southern Cities
333 W. Broadway St., Suite 101
Long Beach, CA 90802
(562) 426-8341

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