A guide on renters’ rights and the legalization of marijuana

News Renting
Serge Bloch for The Boston Globe

Part two of a two-part series on marijuana and the real estate market.

Recreational marijuana may be legal in Massachusetts, but you might want to check your lease before lighting up or buying that grow light.

The passage of Question 4 in November made it legal for people in Massachusetts, 21 or older, to use marijuana, allowing possession and home growth. Despite this, using it is still illegal under federal law, so your landlord has the final say on what you can and cannot smoke (or what you can or cannot grow) in your building.

Given the law’s freshness, the rental market here in Massachusetts doesn’t have it all figured out yet.

“One of the areas where problems could arise is landlord-tenant relationships,’’ said Mike McDonagh, general counsel and director of government affairs for the Massachusetts Association of Realtors. “Communication between the landlord and tenant is essential to avoid any misunderstanding about what is and what is not permissible in the apartment.’’

Scott Peterson, general counsel at the Colorado Association of Realtors, emphasized that the marijuana user, even one who uses it for medical reasons, is not a protected class. “You can discriminate against users, medical or recreational, if you are a landlord,’’ Peterson said.

Recreational marijuana first became legal in Colorado in 2012. Peterson, who has taught several classes for realtors on the subject, wants landlords to be preemptive.

“I encourage landlords to put a clause in the lease that says: ‘Despite Colorado law, marijuana is an illegal substance,’ ’’ Peterson said.

One issue in Colorado has been illegal grow operations.

Last fall, federal agents and local authorities in that state seized more than 22,400 pounds of marijuana plants and products in raids on illegal grow houses. In Massachusetts and Colorado, each person can grow up to six plants for recreational use. The problem is, some people grow way more and sell it out of state.

In that raid last fall, authorities searched 12 properties. Ten of them were rentals.

“What we have seen is that Colorado has become an attractive place in the illegal marijuana industry,’’ Peterson said. “People from surrounding states rent a home here in Colorado and pay two years of rent, and then they go and turn it into a massive illegal grow operation.’’

Grow operations like these have also led to fires, other kinds of structural damage, and crime. “Homes are not built for commercial grow operations,’’ Peterson added.

But what’s in store for Massachusetts landlords?

Douglas Quattrochi, executive director of MassLandlords Inc., a nonprofit that helps owners rent their property and serves as a legislative advocate, said he is generally in favor of the new law as long as tenants don’t violate nonsmoking rules.

“That’s the major issue,’’ Quattrochi said, “because the law as it’s written doesn’t allow usage in public. So if a landlord has a nonsmoking policy, there is nowhere you can legally smoke.’’

Edibles may be the solution for tenants who want to partake, he said.

Quattrochi has updated the rental forms he provides to member landlords to make it clear that growing is not allowed in apartments.

“It might require extra electrical,’’ he said. Landlords are “worried about fires and mold from the humidity required.’’

Given the discontinuity between federal and local laws, Quattrochi said, some landlords who receive federal funding may fear punishment if they are “cannabis friendly.’’

“If you are known to be a provider or safe haven for drug use, especially if people are selling, the federal government can come in and take property,’’ Quattrochi said.

In a 2011 memo, the US Department of Housing and Urban Development emphasized that marijuana use, even for medicinal purposes, is banned in public housing. The resident could be evicted.

On the other hand, Quattrochi speculated, other landlords, ones who do not receive federal funding, could advertise their apartments as cannabis-friendly.

In Colorado, the site Weed Rentals is there to do just that. It handles only vacation rentals and hopes to expand to long-term leases this summer. (The site says it will be offering Massachusetts properties this spring.) Some Colorado landlords have added questions to their rental applications inquiring about tenants’ marijuana needs.

Brad Butler, a property manager in Colorado, told TV station KRDO that he asks prospective tenants in rental applications whether they are interested in growing, distributing, or cultivating marijuana.

But many landlords are fearful of damage to their property.

Bobbie Baca, director of property casualty and title and consumer services for the Colorado Division of Insurance, said she received a complaint in which a tenant’s grow operation damaged a house.

Insurance can be tricky in the world of legal marijuana. Each insurer can decide whether or not to cover related damage. In this case, the Colorado landlord lucked out.

“The damages that were caused were covered as vandalism and water damage,’’ Baca said. “He had a dwelling fire policy (also called a landlord policy).’’

But are the tenant’s possessions covered?

“If those renters had a renter’s insurance policy, it would cover the bed and the clothes,’’ Baca noted, “but wouldn’t cover the stuff related to the marijuana.’’

So let’s say a landlord allows marijuana use in his or her building. It is pretty unlikely that every tenant will embrace it.

Nancy Burke, vice president of government affairs for the Colorado Apartment Association, said if a landlord allows marijuana, other tenants might object. What if “you are in a drafty apartment and right next door is another apartment [with a] baby?’’ Burke asked.

McDonagh said the earlier landlords discuss the topic with their tenants, the better, “so these types of problems don’t arise.’’

Megan Turchi, a reporter for, can be reached at [email protected]. Follow her on Twitter @meganturchi. Subscribe to the Globe’s free newsletter on real estate, home design, DIY, and more