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Property Management Amidst Conflicting Marijuana Laws

by | Jul 1, 2016 | Real Estate Law


The conflict between federal and state marijuana laws continue to leave property owners and residents with differing opinions regarding appropriate use of California properties. It’s a debate that will continue as the conflict is semi-new to with changing laws making medical marijuana legal. Employees are now questioning their employers’ rights to base employment and continued employment on random drug testing. Students are questioning the school’s right to prohibit marijuana on campuses. And, of course, renters are questioning their landlord’s right to prohibit the use, or production of marijuana on southern California properties. The problem was created by a combination of congressional action and executive branch inaction in the opinion of many.

According to the supremacy clause, the U.S. Constitution, federal laws, and treaties are the “supreme” law in the United States of America. This means that both federal and state governments are bound to follow federal laws over any other laws (state or local statute) that conflict. This supremacy clause has held sway for close to two centuries, but in recent news we’ve seen its power tested by marijuana legislation and regulation. The conflict has many commercial and multifamily property owners in southern California stuck in the crossfire between state and federal regulations.

At the base of the problem is the fact that when the federal law was written, the legislature was not anticipated that marijuana would ever be legalized. Therefore the federal law does not accommodate the modern day change. The legalization of marijuana is complex as there are so many different levels of government regulating and restricting its use and/or possession.

Federal Controlled Substances Act: Designates marijuana as a schedule I drug, making it illegal to cultivate, distribute or possess. Marijuana’s classification recognizes no medical use and comes with the toughest drug penalties. No exception for medical use is provided under federal law.

According to the supremacy clause, states cannot enact laws in conflict with federal law. Yet the legalization of marijuana for medicinal purposes is, in fact, in direct opposition to the federal law stated above. The conflict has led the federal government to adopt a policy incongruous with its own laws: a hands-off approach to states with laws recognizing acceptable uses of marijuana. In doing so, the federal government opens the door to the activity, but at the same time, the actual nature of the criminality under federal law has not been altered. The question now is whether or not the federal government will continue to embrace the hands-off policy.

The federal/state conflict creates a severe complication for southern California property owners facing decisions related to marijuana use on property, medical marijuana facilities, etc. Additionally, property owners must continue to appreciate other requirements applicable to their leasing arrangements such as: privacy rights, disability laws, medical rights, etc. It’s a veritable minefield out there for southern California property owners and multifamily property owners right now.

If you find yourself facing an impossible decision regarding your southern California property, please get in touch with an experienced real estate lawyer at The Law Office of the Law Office of Ernesto Aldover as soon as possible. We can help you navigate the minefield and identify your best options in managing any conflicts between federal and state law.