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How Cannabis Can Create Headaches for Commercial or Residential Landlords, Owners, Tenants, Neighbors, and Property Managers

How Cannabis Can Create Headaches for Commercial or Residential Landlords, Owners, Tenants, Neighbors, and Property Managers

Landlords and property managers throughout the United States are wise to keep their finger on the pulse of the rapidly expanding cannabis industry. Cannabis use in and near buildings without a clear no-smoking policy, presents problems for tenants, property managers, and building owners. Here's a quick look at how landlords and property managers should approach the inevitable drama caused by on-site cannabis consumption.

Not only can the odor of cannabis be a nuisance to other tenants, exposure to cannabis smoke through apartment or other rental property ductwork can also cause the same problems as exposure to secondhand cigarette smoke. It is even possible for non-smokers to feel an undesired contact high after exhaled cannabis smoke moves through apartment building internal airways into hallways, individual apartment units, foyers, and other shared spaces.

In short, cannabis consumption in shared living spaces is a positive and negative liberties problem. Those who consume cannabis in apartment buildings argue it is their positive liberty to do so, meaning they have the freedom to enjoy cannabis in the comfort of their home. However, non-cannabis users in apartment complexes argue they should be free from the harm caused by others who pursue their individual freedom at the expense of the collective.

In New York City, the Smoke Free Air Act prohibits smoking of both tobacco and cannabis in common areas of residential buildings with three or more units, but landlords are not required to prohibit tenants from smoking in their individual apartments. In buildings without a complete ban on smoking, tenants who smoke in their apartments could still be at risk of violating their lease if their conduct affects other tenants’ ability to use and enjoy their apartments.

The Smoke Free Air Act also prohibits the use of both tobacco and cannabis in all enclosed areas within public places, including, but not limited to, retail stores, restaurants, and business establishments. The New York Recreational Cannabis law, however, allows for commercial tenants to obtain a license for the on-site consumption of cannabis for adults over 21 years of age.

In addition to use of cannabis in retail establishments, landlords should also be aware of the risks that come with the sale of cannabis by their commercial tenants. In order to sell cannabis through a retail dispensary, the commercial tenant must obtain a license from the Office of Cannabis Management. If the commercial tenant sells marijuana without this license, the landlord could be at risk of receiving a fine from New York State.

Landlords and property managers should do their due diligence in trying to understand the state laws pertaining to cannabis, and should lean on an attorney for guidance on how to handle disputes related to the consumption of cannabis on-site.

With the legalization of marijuana being fairly new in New York and without any controlling case law, the subjectivity of the judge presiding over the matter could potentially result in varying outcomes. Additionally, it should be noted that, notwithstanding the legalization of cannabis in New York, the use and sale of cannabis remains illegal under federal law. This is precisely why it is in every landlord and property manager's interest to obtain legal counsel for ongoing guidance.

Stay tuned to Ingram’s Newsroom for the latest developments impacting New York City real estate, and connect with us on LinkedIn and Twitter.

By Mollie Weiss

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