By Benham R. Wrigley, Jr.

The Michigan legislature recognized that residential tenancy eviction proceedings were being engulfed in Michigan Medical Marihuana Act constitutional arguments.  It’s not that our district court judges are unprepared to handle constitutional issues, it’s just that the time associated with those arguments and the lack of clear legal precedent constrain an otherwise full docket and court system.

Defendants in residential eviction proceedings relating to defaults caused by marijuana use or cultivation have been asserting their rights under the Michigan Medical Marihuana Act (“MMMA”).  The positions are comparable to that asserted by Attorney Terbeek in the seminal zoning rights case decided by the Michigan Supreme Court in Terbeek v. City of Wyoming, 495 Mich 1 (2014). The tenants assert the MMMA “preemption.” Many landlords have likely relied on provisions in their lease agreements that require a tenant to comply with state and federal laws or which outright prohibit cultivation, possession and/or use of illegal drugs. Landlords argue that marijuana possession, cultivation, and sale activities are prohibited under federal law or by the terms of written leases. Thus, these activities would be a basis for eviction in the eyes of a landlord.

Now the Michigan legislature has given residential landlords an ace to trump the MMMA preemption argument. Recently, Governor Snyder signed an amendment to §7 of MMMA. Landlords may now include in a written residential lease a provision prohibiting marijuana cultivation and smoking on the premises. This applies to medical marijuana users too.  Landlords will use this provision in the future for purposes of declaring a default and as the basis for eviction.  The preemption argument asserted by tenants is now trumped.

One might question how a landlord learns of this violation of the lease. Well, landlords do reserve to themselves or their managers in written leases the right to inspect the premises. Maybe a landlord or manager stops by and sees the plants or someone smoking.

This change helps not only residential landlords who want to prohibit medical marijuana smoking or cultivation from their residential rental properties, it also helps the court system with an answer to the MMMA preemption argument, but may open up lots of other factual issues. How does the landlord know? What about production or consumption of edibles or vaping? We’ll leave to you, the landlords and the courts to ponder these questions as the MMMA §7 amendment only applies to “smokes or cultivates marijuana on the premises.”

Many marijuana advocates are angered by the adoption of this limit on medical marijuana patient’s rights. From the perspective of a landlord, however, trying to walk a middle line in maintaining an environment that is attractive to all tenants, these restrictions make sense.  While it may be perfume to some, the smell of flowering marijuana plants can be pretty obnoxious to others, especially if there are 12 large flowering plants in the apartment right next door.  Anybody remember the cartoon character Pepe Le Pew?  And marijuana smoke is, well, smoke – that has a way of traveling to many places within the apartment building, and potentially bothering those neighbors nearby.  So these restrictions can help a landlord maintain an environment that may appeal to a broader range of tenants.

Medical marijuana patients whose landlords have inserted a “no marijuana smoking and/or cultivation” clause in their lease have a number of options:  They can find a rental location that does not insist on these restrictions; they can arrange to have their medicine grown by a caregiver who has the space to grow the plants; they can rent or otherwise acquire their own space to grow their medicine; after December 15, 2017, they can look for a licensed Provisioning Center where they can buy their medicine; and they can learn about other methods than smoking to get their medicinal input (edibles, vaping, oils, etc.).

Life is sometimes a matter of compromise between competing interests. In this case, we can see why the landlords (and probably the district courts) are happy to see these changes.