“We just discovered that our relatively new basement rental tenants are growing weed in their bedroom”

getting high
Photo by PoPville flickr user Brett Bowers

“Dear PoPville,

We just discovered that our relatively new basement rental tenants are growing weed in their bedroom. We’ve been getting headaches from a smell from the basement since the day they moved in and when we asked what the heck the smell was they’ve claimed it was incense (which technically it was). They are using it it seems to cover up some type of smell from the weed but we are not sure exactly what. The smell occurs often during the day so we think it may be something that they are doing to the weed.

Needless to say – discovering the presence of the weed growing during an inspection of the unit (which we did alert them to) has us really pissed and we are wondering what we can do between now and when the lease expires? The lease they signed with a rental company prohibits smoking of any kind in the unit as well as conduct of any illegal activities. It also prohibits use of the unit for anything other than residential purposes (e.g. no business activities). We have a small kid and don’t want any of this on our property (legal or not). Would appreciate any advice of what we can do/request until such time as we can cancel the lease.”

132 Comment

  • doubtful you can do anything
    if they set up proper ventilation in the room your smell issues would be gone…
    i mean it really isnt much different from someone doing a small batch brew in their home with the kit they got for Christmas at this point

  • Call the cops.

  • If they growing it for personal use but not smoking it indoors, then they are within the confines of the lease and the law. With these new regulations, leases need to be clear on no marijuana. I’m sorry, but it looks like you’re stuck. That is to say you could ask them to stop the growing, but they wouldn’t have to if my first points are correct.

    • They’re still in violation of federal law, and therefore in breach of the lease’s illicit activities clause.

      • Doubtful as mentioned below because the lease is construed under dc law. That boilerplate is in pretty much all leases.
        When they Fed says they’re going to ignore these jurisdictions where it’s been voted legal, you’re going to have a damn hard sell trying to get an eviction for it.

  • If they don’t have permission of the owner of the building they’re living in (you), then they’re not legally permitted to grow it. I’m not sure what, if any, enforcement there might be for such an offense, never mind the penalties, but the law is clear that renters need permission from the owner of the property.

    • When the new regulations were announced, we were told by management that we were not allowed to grow it in our units.

    • Not familiar with the law at all, but does it have to be express? With a new lease signed post legislation, I’d argue it was implied if not expressly forbidden therein, but my bing fu didn’t give me the actual legislation.

      • http://dcmj.org/ballot-initiative/

        “(6) Nothing in this subsection shall be construed to prohibit any person, business, corporation, organization or other entity, or district government agency or office, who or which occupies, owns or controls any real property, from prohibiting or regulating the possession, consumption, use, display, transfer, distribution, sale, transportation or growing of marijuana on or in that property.”

        • You’re misreading the law. It says that there is nothing stopping a landlord from prohibiting marijuana. That is not the same thing as saying landlord must give permission for it to be allowed.
          You have to disallow it or its allowed which is why Sarah’s building made sure to tell people no as soon as it became legal.

          • Another example of an unintended consequence of Congressional meddling. Since there are no implementing regulations, the law is less than clear on when/how owner prohibition must occur. I would argue it’s clear that if you own the property, you get to decide if pot can be grown there.

          • I agree, but you decide that putting the prohibition in your lease. No prohibition= implicit permission. Same as any other legal activity you may dislike.
            Change marijuana to a dog. The first thing that would be asked is if you didn’t want dogs why didn’t you just put it in the lease.

          • HaileUnlikely

            While I recognize that from a legal standpoint this is very likely to be correct, I sympathize with a landlord (a normal person who rents out a basement, not an owner of several hundred units) for simply failing to realize that it was necessary to explicitly prohibit something that used to be unambiguously legal and is now is legal if and only if one takes the bizarre approach of ignoring federal law.

          • Agreed with HaileUnlikely. Plus, what about leases that were written and signed before the legalization was even voted on, let alone took effect? How is a landlord supposed to foresee that something that’s currently illegal might become legal in the future, and account for that in the lease?

        • HaileUnlikely

          Yes. The outstanding question is whether an owner can impose new rules mid-lease (regarding anything, including but not limited to present subject matter) or whether they have to wait until the lease expires and a new lease is negotiated to do so. I do not know the answer to this but bet a lawyer-landlord or two on here do.

          • I’m one of those LL+ lawyer. When marijuana went from illegal to legal, there was a material change in circumstances such that you could impose a no marijuana policy then. In this case, the lease was signed post legalization, so op was on notice that people may use it (people used it while illegal, but you’re not required to specifically exclude illegal things in your lease; it’s implied), so the onus is on them to prohibit it. Once the lease is signed, they’re stuck. As I mentioned below, a new lease signing could be changed to add that provision, but I’m not clear/don’t think they could change it if they went month-month.

          • HaileUnlikely

            That’s basically what I thought, thanks. I do not know but I would assume that a landlord couldn’t arbitrarily add a no pets clause mid-lease or when it went from fixed term to month-to-month. If that is the case, then this should be handled similarly.

          • Maybe if something big happened, like adopting a child who was deathly allergic to dogs then adding a no dog clause in the middle (If the tenant didn’t have a dog already), I can’t imagine it being possible. Even in my scenario, it may not be.
            Anybody with more knowledge, let us know.

      • HaileUnlikely

        Also relevant: the legislation permits an adult to grow up to a maximum of 6 plants, no more than 3 of which can be mature at one time, and all of the adult residents of a property can grow no more than a maximum of 12, no more than 6 of which can be mature at one time.

        • Blithe

          That’s interesting. I’m not clear if “property” would mean an apartment, or the building, and/or how this might change with a larger building. Would a possible solution be for the OPs to get 12 itty bitty baby plants, stuff them in a terrarium, and truthfully tell the tenants that they’ve maxed out the legal number? Would owners trump tenants — even if the tenants had their plants first?

          • “Property” would be each legal residence. There are only so many plants each person may control in each property. So OP+spouse could have 12 plants upstairs and tenants could have another 12 downstairs. The “property” size does not matter much – 8 adults living in one apartment could have 48 plants.

          • HaileUnlikely

            I paraphrased, the actual law is more specific. In a big apartment building with a hundred units each of which is clearly a separate unit, each unit would have their own limit of 6 per adult / 12 per unit. In a house with a true separate basement unit (has its own Certificate of Occupancy), I think each unit would still count as a separate unit, because having its own C of O means that it legally is a separate unit. In a house where the basement is rented as a separate property but does not have its own C of O, that would be a much hairier legal situation and I suspect that the legal system of DC has not figured out yet how to address it.

          • I hope owner trumps, but you never know in DC. Might be first come, first serve.
            Seems like that would work, but then you have to keep plants in your house indefinitely.

          • Blithe

            Anon Spock, if the law specifies only the number of plants and mature vs not-mature, rather than their condition, then the OPs possibly would have no problem keeping these small, not well-cared for plants in a jar until the tenants leave — if it addresses a problem that they view as significant.
            – Thanks everyone for your responses to my questions. It’s only today that I’m beginning to appreciate that laws — and the legal profession — can be far more interesting and entertaining than I realized.

    • Which law? I know of none. Certainly not landlord tenant law in the District. Gimme a cite.

      • http://dcmj.org/ballot-initiative/
        “(6) Nothing in this subsection shall be construed to prohibit any person, business, corporation, organization or other entity, or district government agency or office, who or which occupies, owns or controls any real property, from prohibiting or regulating the possession, consumption, use, display, transfer, distribution, sale, transportation or growing of marijuana on or in that property.”

      • Not sure why this didn’t go through the last time I tried to post it. But it’s in the text of Initiative 71 itself:
        “(6) Nothing in this subsection shall be construed to prohibit any person, business, corporation, organization or other entity, or district government agency or office, who or which occupies, owns or controls any real property, from prohibiting or regulating the possession, consumption, use, display, transfer, distribution, sale, transportation or growing of marijuana on or in that property.”

        • I might be reading this wrong, but doesn’t this basically say:
          “This law can’t be used by owners to prohibit or regulate possession in that property”?
          I’m not a lawyer.

          • WAIT! I was wrong! I didn’t see the second “to prohibit” half way through the paragraph. Fail.

          • HaileUnlikely

            No, the opposite (I’m not a lawyer either but this is pretty clear: It says that the preceding stuff [about pot basically being legal] cannot be used to prohibit a property owner from prohibiting growing/using on their property, i.e., a property owner can still prohibit it.

          • LOL Made me re-read it to make sure I wasn’t incorrect.

  • Unless you are in Maryland or Virginia this is (obviously) perfectly legal. Strictly speaking they are violating federal law, so you could try to use that to evict them but I doubt it would be easy. As you may or may not know growing requires extensive use of energy sucking grow lights. Make sure they’re up to date on their utilities.
    This is why it was completely moronic to approve legalization with no rules about how/when sales, growing, etc. was to take place.

    • Anonomnom

      You can thank Congress for that.

    • burritosinstereo

      I think it would depend on the amount of plants, no?

    • it wasn’t moronic to approve the legislation that was the will of more than 60% of the voters of this jurisdiction. the morons are in congress for sticking their noses in just to make a hypocritical spectacle and then leaving us with a mess to clean up. You are a serious jerk if you try to pull a federal rank thing on this issue.

  • They’re not doing anything illegal unless they’re selling the weed they’re legally growing, so I’d say you’re shit out of luck.

    Ask them to stop burning their crappy incense and just stick to growing weed.

    • This! If the incense is really causing the problem, let them know that first of all. Chances are good that the plants themselves aren’t giving off any odors.

      You can also ask them to vaporize instead of smoking, but it’s worth noting that MJ smoke doesn’t linger in fabric or materials like cigarette smoke does, so it’s not as big a landlord concern.

      Unless your child is prone to breaking and entering, I really doubt the small, probably-personal-use farm near your abode actually represents any danger to them. If you can get concessions on the incense and vaping, then you can end up win/win.

      • “MJ smoke doesn’t linger in fabric or materials like cigarette smoke does”
        [Citation Needed]
        I’ve been in places where people smoke weed, and it REEKS. Meanwhile, I (legally, and within the bounds of my condo association rules) smoke a couple of cigs a week in my house, and with good housekeeping, ventilation, and fabric cleaning, there isn’t much smell to remark on unless I’ve just finished one. In fact, when I lit up a few years ago when a friend was over, a friend said “YOU SMOKE IN HERE?” and immediately buried his nose in my couch looking for trace smells.
        I mean, sure, the average pot smoker might smoke one joint a day in the house, while the average cigarette smoker might smoke a pack (20) a day…however, my experience is, given similar usage (1-2 a day, joint or cig), the “lingering smell” is about the same.

  • If you can’t beat ’em, join(t) ’em.

  • Not sure you can do much. As long as they are under 6 plants (with 3 or fewer mature plants) what they’re doing is legally no different than having a basil and rosemary garden. I sympathize, I hate the smell as well.
    How are they getting light in a basement?

  • Growing your own weed (3 plants I think) for personal use is legal in DC right? Why would this be illegal? Sure it’s probably annoying but growing weed has been legal for awhile now. You should add it to your lease for future tenants.

    • It’s still illegal under federal law. The Controlled Substances Act did not go anywhere.

      • But I’m sure that lease says construed under dc law but federal. Dc is far too tenant friendly to even bother trying to get them out on that, and they could basically stay there forever as long as they abide by the lease and pay rent in time.

  • If it’s the smell that bothers you, suggest they purchase a quality HEPA airfilter. That would be the decent thing for them to do, and least complicated for all involved.
    Down the line, you’ll likely have more luck enforcing the “no smoking” clause I imagine is in your lease.

    • If they are smoking and you’ve stated in the lease “no smoking”, then they are probably in violation of that provision, and if they continue to violate it, that is grounds for eviction. You’ll have to go thru the whole process though — a notice to cure, wait 30 days, if problem is not fixed, eviction etc. Go to the landlord/tenant resource center in DC Superior Court. Its open during regular court hours and the lawyers/staff there can help guide you through the forms (but they may not give legal advice).

      As for whether growing weed is itself illegal, I’m not sure. It would certainly be easier if you had an express provision in your lease stating it was not allowed. The default may be that its allowed otherwise, although I doubt the legalization law or landlord/tenant law says either way (you should check…).

      • there are countless other ways to consume that don’t involve smoking.

        As a simple legal matter than can use a vaporizer. OP should worry more if they are producing hash oil, the processing of which is a real fire hazard.

        Agree on the hepa filter suggestion. most practical and simplest middle ground to make the odor disappear which seems to be OP primary concern.

    • If you can’t reach a satisfactory agreement with the folks living in the basement of your house, I suggest you contact an atty and perhaps also the DEA.

      • Yea, the DEA is going to jump right on it. Good luck with that. 😉
        You’re much better off contacting Andy Harris. At least he’d care to do something about it.

        • The tenants are not likely to want to deal with the hassle of a hostile landlord and potential legal trouble when the best they can hope for is an uneasy year followed by a huge rent increase when their lease expires.

  • also, anyone savvy enough to grow their own weed is most likely not down in the basement smokin’ big blunts. They probably have a nice vaporizer set up to ensure it’s not a smoky mess down there.

    No vaping clause in the lease as well?

  • Indoor grows can emit smells. Thats why there is an entire industry built around charcoal filter technology that will mask and clean the air in a grow room/grow tent. These filters are relatively inexpensive depending on the size of the grow operation. A 2×4 foot space should be able to use a 100 dollar filter connected to an exhaust fan. This will get rid of the smell completely or at least to the point where you wont be able to smell it through walls. If they are using incense to mask the smell, perhaps mention that to them. You can also tell them that the air circulation provided by the fan will help their buds grow big and strong and ultra potent.

  • isn’t there a limit to how much you can grow for personal use? I would make sure they are within that limit and if they are over, then you could try to get them to stop that way. if they are within the law, and the lease doesn’t say anything then I don’t know if you can do anything other than have a conversation with them.

  • How do you plan on canceling the lease? In DC all leases automatically renew after the initial lease period. There are very few ways to cancel a lease legally in DC.

    • Leases don’t automatically renew; they automatically go month to month.
      After the initial lease period has expired, if the landlord wants to move back into the space, he/she/they can (IIRC) give the tenants 30 (or maybe 60?) day’s notice. This might be the OP’s only real option.

  • northeazy

    Technically, what they are doing is illegal. DC’s marijuana law is also technically illegal. The problem is the Obama Administration decided not to prosecute states that violate federal drug law by allowing their citizens to smoke marijuana (CO, WA, AK, and DC are the only four jurisdictions that approved legal marijuana use or possession). Legally, DC enforcement authorities cannot stop them from smoking or using marijuana. Federal authorities have been instructed by Obama’s DOJ not to apprehend federal drug law violators in these four jurisdictions.

    The only thing you can really do is 1) wait for them to run afoul of DC’s law by selling the marijuana or using outside; or 2) vote Republican in 2016 as I believe all Republican presidential candidates have stated they intend to enforce current federal drug laws on the books, including the four aforementioned jurisdictions.

    • Congress also has included language in a spending bill (i think it was a spending bill) that said the DEA is not to go after any medical marijuana cultivators/dispensaries/users who are lawfully operating under their states law.

      It begs the question as to why it is a schedule one drug with no clear medical use when congress has also said it has a clear medical use and not to go after medical patients…

    • Rand Paul specifically stated in the last Republican debate that he has no intention of enforcing federal drug laws in the states. In fact, he and many others argue quite persuasively that the federal drug laws are unconstitutional, unless interstate commerce or importation from abroad is involved.

    • Actually, like a solid half of R candidates have said something to the effect of “I don’t like it, but I also think that this should be determined at the state level” aka defacto what’s happening now.

  • “…they’ve claimed it was incense…”

    If they are burning incense, isn’t that the same as smoking and therefore a violation of the lease?

    • I wouldn’t think so. The lease would need to explicitly ban incense. Likewise, you couldn’t use a “no smoking” clause to evict because they lit candles.
      Leases need to explicit, especially surrounding marijuana use and growing.

  • Blithe

    — If the original lease did not have a ‘no marijuana” clause, can it be added? My question is really more general — as in: can a landlord substantially alter the terms of a lease for a current tenant, if the tenant wants to stay beyond the time covered by the original lease?

    • Definitely yes if a new lease was signed, but otherwise, I’m not sure beyond raising rent. Good question.

    • I don’t think so. But the landlord can incentivize lease changes by not raising the rent by much.
      For instance, one of my previous landlords wanted to change some terms in the lease to make it more favorable to him. It was something his insurer requested. Landlord said we could agree to the changes and he wouldn’t raise the rent that year. Or we could keep the lease the same (month-to-month tenancy) but he’d raise the rent $300 (on a $4500 group house).

    • Good question. I have a “no cultivation of marijuana” clause in the lease for a rental property where I got a new tenant this spring, but I don’t have one for a different property where the initial lease started in 2014 and the tenants are now month-to-month. Fortunately they don’t show any interest in cultivating marijuana, but whenever they move out I’ll definitely want to add it to the new lease.

  • It doesn’t really smell until the end of the growing process. You’re just being a narc!

    Grow up!

    • Op thinks it’s a chemical or incense not the weed actually. Allowing your smells to come upstairs is a nuisance and using crappy coverups is even worse.

    • Not wanting to smell weed or crappy incense is not being a narc. Its simply not wanting to smell weed or crappy incense in your home. We’re not teenagers here. It’s legal to grow in DC but everyone knows it will eventually smell and it might tick off your landlords who live directly above you. Be an adult. Tell your landlord and work out a compromise. Don’t just call anyone who doesn’t like the smell of weed a narc.

    • saf

      Ah yes, “narc” as insult. That’s really awfully juvenile.

  • screen your tenants better: leave a bowl of Doritos on a table when prospective tenants come to look at the unit. If the bowl is empty, then you know not to rent to them.

  • Call Representative Andy Harris. I’m sure he’d love to help. 410-643-5245

  • I doubt this is going to litigation, so why not just ask them to stop growing weed, and that if they don’t, they should find a new place to live. Most renters dont want the aggravation of having potentially hostile landlords. Sure, the rules technically favor renters and what they’re doing may be within the bounds of the law, but in my experience, most people aren’t willing to go toe to toe on something seemingly minor. If you explain it nicely, they may just stop, or at the least, do something to prevent the smell, or perhaps even just move out altogether.

    • This is also a good point. Maybe offer to release the tenants from the lease with no penalty if they want to find more grow-friendly housing?

      • Eh, they’re not likely to find more grow-friendly housing. Landlords don’t like liability. That’s why renters don’t tell landlords what they’re doing (and try to cover it up with crappy incense) even if it’s technically-maybe-legal.

  • Is it illegal for federal employees to grow/use marijuana, even if DC law allows it? If yes, could the OP, if a federal employee, say that they the tenants cannot grow the marijuana because they are growing it on the OP’s property? It seems like a stretch.

    • My federal employer sent out a warning a long time ago that even if the use or possession of certain controlled substances is decriminalized or legalized outright under state law, it is nonetheless a violation of the conditions of federal employment to use or possess those substances if their use or possession is illegal under federal law. The federal laws on marijuana have not changed. It is still considered to be a controlled substance.
      The OP’s property is not “federal” property. But there may be a legitimate concern that the OP’s federal employment could be endangered if it is discovered that someone is growing marijuana on the OP’s property.

  • So… is the incense related to the marijuana? How? It appears you’re only really affected by the former, but your only complaint is with the latter.

  • I have been shocked by how many well educated people I know that think pot is perfectly legal now. The fact is it is still illegal at the federal level and federal law trumps state law. Thus, your clause prohibiting illegal activity should cover this situation.

    • i’m shocked how many well-educated people i know think that this is a situation that can be reduced in such a way, and not one rife with conflicting interests, laws and rulings all over the country that all contribute to the judicial complexity. it’s nowhere near as cut-and-dried as you would like to believe it.

  • As others have said, growing weed is illegal under federal law. Even if the lease would be “governed by DC law” as someone else said, that does not necessarily render federal law irrelevant. If the lease has general language that the tenants will not do anything illegal in their unit, then the fact that growing weed is illegal under federal law would put them in violation of that clause. This would be true regardless of whether the feds are willing to enforce the law, because you are not looking to get the tenants federally prosecuted; you are just looking for evidence that they are in violation of the lease so you can evict them/force them to comply with the lease’s terms. I am a lawyer, but not a landlord-tenant lawyer. My advice: read your lease carefully and consult a lawyer who specializes in DC landord-tenant law.

    • My leases specifically mention that the tenants must comply with federal laws. When the DC law passed, the current tenants received a letter stating that the federal law clause of the leases meant they were bound by federal law not to grow, possess, or use weed on the property. I would not sic DEA on them if they occasionally enjoyed a joint OUTDOORS (which is legal so long as you are on private property…some of my places have patios), but wanted to prevent any issues inside. We inserted a no growing clause in the new leases, and left the federal law clause, as well. If it just generally prohibits “illegal activity,” and the tenants want to fight, it might be a losing case. If it specifically mentions federal law, it might be worth it to have a lawyer look the lease over and see if it could be applied to the situation, and send them a letter telling them as much.

      • I applaud your generally humane approach! I would say, however, that as long as it’s not tobacco mixed with weed, and is just weed, weed smoke just doesn’t damage property like cigarette smoke does. So insisting that people smoke weed outside is definitely more dangerous than insisting they smoke inside (if there’s weed at a party I’m at, most hosts insist that it be smoked inside, where the smell can be hidden and controlled better). I understand that it’s no skin off your back, but just food for thought since you generally seem interested in not being a dick about MJ law!

        • It’s not just the smoke damage, it’s the fire risk. Every year in america many properties burn down because people fall asleep while smoking (usually tobacco, but could be MJ too). Vaporizing (any substance) reduces or eliminates fire risk depending on vaporizer design. There is also the issue of adjoining units without air separation, common in converted row houses like what OP’s place apparently is. Tenants smoking in one unit can be a nuisance to tenants or owner in another.

        • All of my rental properties are condos and all have no indoor smoking rules, period. See my reply above…while “typical use” may not do as much damage when it comes to cigs vs. MJ, MJ has a VERY potent smell that is likely to disturb neighbors, and CAN do a lot of damage to a property if smoked to excess (for example, not just a single person having a joint here and there, but 3 residents smoking regularly and having guests who do so as well). Again, if I were to get a complaint that someone smelled MJ OUTSIDE the property ONCE IN A WHILE…I’d tell them to get over it, it could have just been someone passing by. If, instead, I was told that there were strong MJ smells INSIDE the building, or outside on a regular basis and coming from the patio, someone would be getting evicted. Lease says no smoking (period), as well as no MJ cultivation, possession, or use on the property (including outside). Maybe they should come to your house if they want to toke?

  • Whie it may be technically illegal, you clearly have never dealth with DC government concerning marijuana concerns since the law has passed. To say the least, they are hands off. You will have to move congress to make anything happen here.

  • OP, you have my deepest sympathy.
    The stink of pot pervades my neighbors house and it is sickening smelling this day after day. And adding incense on top of this? Migraine inducing for sure.

    And no, I am not a “narc”, just someone who hates the smell of pot. It smells like sewage to me.

  • PS: OP, you mentioned the lease was signed thru a rental company. So does that mean you hired the rental company to screen tenants for you? Can the rental company be the bad guy in this case and bring this issue up?

  • I’d actually check with an attorney to verify that you are within your rights here, but I knew someone who had a similar situation in another state where they found their tenants were growing weed and they simply confiscated it and drove it down to the police station, said their tenants were growing it, and handed it over. Regardless of what the local law says, federal law says this is not legal activity, and federal law trumps local laws nationwide. If your tenants find their plants wander off, they’ll stop growing them or they’ll move.

    • Everyone knows federal law trumps state law.

      The Fed has explicitly said it will not enforce that law here or wherever it has been voted in. A landlord tenant judge is going to be hardpressed to evict someone for something you could have simply prohibited with one sentence that the Fed isn’t worried about.
      Good luck with that.

  • Since we have some lawyers who seem to be pretty familiar with LL/Tenant law in DC hanging around…my thought would be that the smell is a violation of the rights of the owners/upstairs residence to “peaceful enjoyment” of their property. If the rental company used the GCAAR lease (why wouldn’t they?), that lease prohibits use of the property in a way that would disturb other residents’ peaceful enjoyment of their property (including neighbors), whether that use is legal or not. This seems the approach most likely to be successful, since the right to peaceful enjoyment is a common and well-recognized tenet of rental law.

    • The “peaceful enjoyment” argument seems to come up every time someone does something that someone else dislikes, but it seems too vague and subjective to really be useful on its own. I mean if it applies to the smell of plants, it can apply to cooking and perfume too, right? Seems like more of a starting point in conflict resolution between tenants/landlords/neighbors rather than a useful, actionable legal argument. Can any lawyers comment on how useful this “peaceful enjoyment” is from a legal point of view?

      • It does get bandied around a lot. Generally, normal life activities like cooking and whatnot can’t be prohibited under peaceful enjoyment because the TENANT’S right to peaceful enjoyment is then infringed. If you can’t cook food you like in your house, that’s a serious dent in your right to a normal quality of life. If you can’t walk around or turn your TV on EVER, even if you’re reasonable about it, then your peaceful enjoyment trumps someone else’s version of that. However, if OP is, legitimately, experiencing headaches and/or other health consequences from an activity that isn’t a basic living activity (no one is going to have to undertake extreme or expensive modifications to their basic life activities (cooking, sleeping, etc.) to not grow weed inside their apartment), then I would think her peaceful enjoyment would trump the tenants’.

  • Anyone (fed employee or not) with a security clearance is not allowed to partake in any marijuana activity. I would be terribly worried if a tenant of mine grew on my property. I think I would give them notice now and explain it to them like that — you’re in danger of losing income or clearances (or potentially even having your house confiscated). If they can move out before their lease ends, great. If not, just make sure they know far in advance you won’t be renewing the lease and use the extra time to see if you can get them out some other way.

    • General Grant Circle

      Not everyone who works in DC needs a security clearance – I doubt these people do. Some of us are barbers, bartenders, bike mechanics, wine sellers…

      • HaileUnlikely

        Yet landlord-tenant law does not have special provisions for the admittedly-small subset of landlords that are actually required to abide by the federal law and are unable to take solace in some half-baked voter referendum that conflicts with federal law. DC really has put such people in a sh!tty position.

        • Intentional pun, have you seen the movie Half Baked? 🙂
          I doubt someone would lose a clearance over that if they were making an effort to get tenants to stop. They didn’t invite it or foresee it.

    • Threatening to not renew a lease in DC does not matter because they automatically become month to month at the end of the lease term.

  • Just because a lease is governed by state law, that does not mean that a provision in the lease which bars “illegal” activity will be construed as only including things that are illegal under state law. A court will likely interpret the term “illegal” (or “unlawful” or whatever similar term used in the lease) as having its typical meaning, which at least arguably includes things prohibited by federal law. So if your DC lease says no “illegal” activity without a definition of “illegal,” I think you have a very good argument that this includes things that are illegal under federal law.
    The federal government has not walked away from enforcing every marijuana law in every jurisdiction where it has been decriminalized. For example, there has been no assurance that proceeds from “legal” marijuana sales won’t be seized under federal asset forfeiture laws. Hence the reason why these legal marijuana dealers run all cash businesses.

  • I sympathize with the OP. This is another bizarre consequence of a poorly thought-out law, in addition to the more obvious problem of consumption. So it remains illegal to smoke pot outdoors but you can do it indoors. For those of us apartment dwellers who are trying to avoid exposure to second-hand smoke in their own homes, and have benefited from the overall trend discouraging tobacco smoking, this law sets us back decades. One would hope that a “no smoking” lease clause would apply to non-tobacco products, but is it crystal clear? Or will some push back?

    We live in a rental building. Recently, new tenants moved into an apartment several floors below us and immediately began inviting their friends over to smoke copious quantities of weed, both indoors and in outdoor spaces. The hallways stink of pot and the odor even drifts into areas of our apartment not adjacent to the hallway ,like our bedroom. After complaining to the landlord, he informed the tenants that they couldn’t smoke. But guess what? They haven’t stopped. And maybe this will become an ongoing battle that we don’t need.

    The law should have established clubs in commercial zones where people could bring their own supplies for use in well-vented and filtered spaces, such as cigar bars. Or establish outdoor pot parks (again, away from residential areas), like dog parks. The way it is currently set up, the law will fuel conflicts between neighbors all across the city. Thanks DC!

    • Smoking outdoors, but on private property, is legal. If your landlord/building management has not inserted proper “no MJ cultivation/possession/use” clauses into their lease, they should require that the users go outside but within the confines of the private property. At least that’s less disruptive.

  • This would fall under the 9 legal reasons to evict a tenant.
    It is illegal under federal law, therefore it qualifies. You can give them 30 days’ notice and then the marshals can evict. Dhcd has templates online for the eviction notices. Just google.

    • HaileUnlikely

      Read your own link. It says, “Your landlord must give you at least 30 days notice *if a court has decided* that you have committed an illegal act in your apartment or building.” You can proceed with your eviction papers after a court has decided that the tenant has committed an illegal act. You might have a hard time getting a court to do so in DC, and the landlord alleging that the tenant has committed an illegal act does not meet the bar set here for eviction due to illegal acts.
      I sympathize with the OP here. DC has put a lot of people in a really awkward spot with this poorly crafted law of unclear validity.

      • In that case (and assuming OP is the landlord), she should evict for reason #2- violation of lease terms (ie no smoking, no commercial activities assuming they are growing more than DC allows). Or, she can take her unit off the market and evict for that. This whole situation is exactly why I didn’t vote in favor of the marijuana initiative. It was a poorly thought out law and it’s unfortunate that these situations are now happening. Hopefully someone in the DC gov will be the grown up in the room and propose some legislation that deals with these types of issues.

  • Not sure if anyone mentioned this, but the smell
    is probably from the flowering of a female plant. It has a strong skunk-like smell. Growing indoors should have ventilation. Even one medium-sized plant can smell pretty strong. Presumably it will finish flowering soon and die.

  • I didn’t read all the comments but in a hypothetical situation, what if the tenant had a medical marijuana card? How would that effect the situation?

  • Is smoking listed as a prohibited activity on the lease, if so you can throw them out.

  • I faced this same issue… sort of. Except, I’m a resident in a smoke-free apartment complex. I choose not to smoke weed and really don’t want to smell it. In my building, somebody was smoking a lot of weed, it reeked in the hallways and stairwells. I approached the management about the issue and they said if I could help pinpoint the apartment they could take action because: 1) It’s a smoke free building and no smoking of any kind is allowed in the building. If a resident is caught smoking it is a violation of the lease. The next thing they said, I don’t know how true it is, is that the DC law only allows for personal use inside your own home or if the landlord allows it. Also, I thought smoking in public is also illegal.

    So it seems to me that the landlord has several options to pursue in evicting the tenant… but again, I’m just going off what I was told by the leasing office in my building.

    • but this is only if they are *actually smoking* it. if they’re just *growing* it and not smoking it in the home, that’s different.

  • You could serve them with a notice to quit or vacate citing every provision in the lease that arguably applies–the illegal activities clause, the quiet enjoyment / don’t be a nuisance clauses, or any clause that gives you a right to make additional rules. Your notice may or may not ultimately be enforceable, but given the number of comments going each way, there’s a chance it will be, and so they might choose not to fight and to quit or vacate anyway.

    Also, have you tried just asking them not to? Sometimes people are reasonable.

    The LL/T clinic is a great option. I volunteer there sometimes. Show up right when it opens.

    • Other ideas of clauses you might look into trying to rely on: anything with regard to fire hazards, or anything with regard to complying to rules issued by your insurer (which might already have something, or be willing to issue something, regarding illegal activities conducted on the premises, not necessarily limited by DC law).

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