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Can landlords really ban marijuana edibles? Usually not, but that hasn’t stopped them from trying

Legally questionable lease provisions ask Massachusetts renters to forgo cannabis

Landlords of Massachusetts properties like these triple-deckers in South Boston are increasingly adding anti-marijuana restrictions to rental leases.
Landlords of Massachusetts properties like these triple-deckers in South Boston are increasingly adding anti-marijuana restrictions to rental leases.John Tlumacki/Globe Staff

Five years after Massachusetts voters legalized marijuana, the state’s apartment renters are increasingly being pressured to give up their ability to use or even possess the drug in their own homes.

A Globe sampling of leases from around the state found that a growing number of landlords are revising the annual contracts to replace generic anti-drug provisions with new restrictions on cannabis — and not just on smoking it. Some leases also contained legally dubious sections seeking to bar consumption of marijuana edibles on the premises, or possessing any form of the drug, often under the threat of immediate eviction for a single violation.

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Attorneys said such language almost certainly violates Massachusetts law, which permits landlords to ban the smoking of tobacco and marijuana but explicitly says they may not otherwise restrict tenants from possessing cannabis and using its other forms.

The only exception is when failing to ban cannabis from the premises would cause the landlord to run afoul of federal regulations, a scenario that primarily applies to public housing and university dorms that receive federal funding.

“The statute couldn’t be more clear,” said Jim Smith, a former state representative and Boston cannabis attorney. “To say you’d be immediately evicted for having an edible is just totally bogus. A court would be very, very open to the tenant’s side of that argument.”

Most tenants are not aware of their rights, however, and usually have little to no leverage in lease negotiations. One medical marijuana patient seeking housing said more than a dozen Massachusetts rental agents simply stopped responding when he asked if the landlords they represented might accommodate his consumption.

Officials in the office of Attorney General Maura Healey, meanwhile, said they have never enforced the protections, because renters rarely if ever complain.

As a result, anti-marijuana lease provisions appear to be proliferating. And while most tenants simply ignore the rules and try to be discreet, others described living in constant fear of eviction, or adopting elaborate consumption routines to avoid detection. Several medical marijuana patients even said restrictive lease provisions prompted them to resume using pharmaceutical drugs they had previously replaced with cannabis, despite suffering side effects.

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Critics say the lease provisions, whether or not they are ultimately enforceable, amount to a form of intimidation by landlords. And along with the state’s prohibition on public consumption, they can essentially leave Massachusetts tenants with no legal place to use a legal substance.

“I felt so unwelcome and out of place,” said 24-year-old Zach Williams, describing his recent tenancy at a large professionally managed apartment complex in Boston’s Jamaica Plain neighborhood that bans marijuana smoking and vaping. “A lot of the time I would walk out to my [parked] car on the street and smoke in there, which I know you’re not supposed to do, but what choice did I have? I sat in the back seat so the cops wouldn’t think I was driving if they saw me.”

While a number of leases reviewed by the Globe contained only lawful restrictions on marijuana smoking, others appeared to go much further.

One especially zealous Brighton landlord specified in an anti-pot lease addendum running several pages that residents and guests were barred from “inhaling, exhaling, breathing, chewing, carrying,” or “injecting” marijuana, an unheard-of practice. Claiming his triple-decker and the surrounding property had “been designated as a marijuana-free living environment,” the landlord recently required two prospective residents to agree they would never possess any form of the drug there and pay $500 a day for any violations of the zero-tolerance policy, plus any legal expenses he incurs in evicting them.

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“We thought we found this holy grail of an apartment and were super excited until we saw that [addendum],” said one of the prospective tenants, a medical marijuana patient who asked that her identity be withheld because she fears retaliation from her landlord. “Then it was just this sinking feeling of, ‘Is this worth it, or are we digging ourselves into an awful hole where we can’t feel comfortable in our own home?’ ”

The pair ultimately signed the contract, figuring that objecting to it would only tip off the landlord and gambling that, in practice, he wouldn’t evict them for a single violation — the same calculus described by a number of renters who spoke with the Globe. Still, the experience was “jarring,” the patient said.

“I understand why landlords want to protect themselves, but this is swinging too far in the other direction,” she argued. “We’re great tenants with good jobs. We’re very mindful of not making the building stink of weed. Our past landlords always loved us. Yet here we are sneaking around like criminals.”

Doug Quattrochi, the head of the MassLandlords association, said most landlords whose leases restrict marijuana are simply trying to prevent annoying odors and damage from smoke or mold (which can occur in humid rooms used to grow cannabis). But he acknowledged leases banning edibles and cannabis possession were likely unlawful, and said he strongly doubted claims by some landlords that they could be disqualified from receiving pandemic-related federal rental assistance if they did not completely ban marijuana.

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“Those concerns may be a little far-fetched,” Quattrochi said. “A lot of landlords … have gone full knee-jerk: No smoking, no vaping, no edibles, no nothing. ... I’m sympathetic to folks who just want to consume weed in their own homes.”

Boston resident Patrick Walsh said the landlord of the Mission Hill apartment where he has lived for three years recently revised the lease to ban smoking not only indoors but also outdoors on the property. That has left him wondering where, exactly, he is supposed to use marijuana.

“It’s absurd,” said Walsh, 29. “How can the state legalize [marijuana] but you’re not allowed to use it anywhere?”

Quattrochi called on state lawmakers to provide renters with more legal places to consume cannabis, perhaps including in public parks. A bill that would authorize ventilated marijuana consumption lounges is pending on Beacon Hill.

While state law is relatively clear on which marijuana restrictions landlords can and cannot impose, the status of state-registered medical marijuana patients remains murky. A lawsuit brought in 2019 by an Agawam couple facing eviction over their medical cannabis use ended inconclusively when they moved out.

A 2018 decision by the Supreme Judicial Court could offer some protection for patients, however. Justices ruled that Massachusetts employers could not summarily fire workers with medical marijuana cards just because they flunked a drug test, and were instead obligated by disability law to negotiate possible accommodations in good faith.

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Smith and other attorneys said the same principle could hypothetically be extended to landlords as well, though doing so would likely necessitate prolonged litigation, an impossibility for the average renter with a disability.

“Cannabis is not being treated as it should be here,” Smith said. “It’s not like landlords complain if you bring home a case of scotch and drink all night. There’s really a stubborn stigma.”


Dan Adams can be reached at daniel.adams@globe.com. Follow him on Twitter @Dan_Adams86.