When Illinois became the country’s 33rd state to legalize recreational cannabis, it was hailed as a step forward for social justice in the cannabis world, with Gov. J.B. Pritzker touting the state’s policies as the “most equity-centric approach in the nation.” However, it also cast a light on the lingering issues of unequal access — and, according to some, unfair enforcement — when it comes to cannabis.
Specifically, a provision in the new law allows for landlords to forbid smoking cannabis in multi-family buildings such as apartments or condos. Proponents say this allows the owners of such properties to protect their investments, while also safeguarding the rights of other tenants who might be bothered by the smell of cannabis wafting into their space.
However, opponents believe the law places an unjust burden on cannabis users who don’t own their own homes. In Illinois, it’s illegal to smoke cannabis in public places like parks and plazas. People are also forbidden from smoking in their cars, giving non-homeowners few options for finding a place to smoke.
In an interview with the Rental House Journal, attorney Bret Sachter said that the law is in line with legal precedent. According to Sachter, “[With] few exceptions, people can do what they want to protect their property, even if the prohibited behavior is not illegal. You can prohibit smoking, prohibit pets, but with marijuana it’s much easier because it is federally illegal. So you can pretty much prohibit it if you want to no matter what, even medical marijuana.”
But outlawing the smoking of cannabis is easier in some places than others. In condo associations, for example, an outright ban is hard to enforce because each condo is technically an individual unit (one that is often owned by the occupant). This means that instead of enforcing a unilateral ban, condo associations need to have the support of a majority of condo owners before banning cannabis use in individual properties.
Some, like The Enclave condo association, are taking a wait-and-see approach. As representative Mark Anderson told the Chicago Tribune, “We’ve talked with legal counsel, but so far we haven’t had any stance on the issue.” He said that his organization planned to keep track of complaints and take any necessary action in the future.
Illinois might be the most recent state to navigate this particular quandary, but it isn’t the first. Many states that have legalized recreational cannabis have found themselves dealing with similar issues, and so far there’s little consensus on the best way forward.
In California, for instance, some cities completely banned cannabis smoking in multi-family properties. As attorney Jesse Stout told the Desert Sun, this could be viewed as “discriminating against people based on their health,” since many medical cannabis users deal with serious health issues like nausea or digestive problems that make edibles or tinctures problematic, while others need the fast-acting relief that comes from smoking cannabis. However, Proposition 64 (the bill that legalized recreational cannabis in the state) said that landlords were free to forbid cannabis use in their leases, considering that other tenants were likely to complain about the smell.
In Michigan, landlords are also legally allowed to ban smoking cannabis on the premises of their properties. Other forms of consumption like tinctures or edibles are permitted, though some landlords have added specific language forbidding vaping in their leases. Residents of public housing are forbidden from using any form of cannabis, even for medical purposes, at the risk of losing their leases.
In some states like Washington, landlords are taking an even stricter stance on cannabis, completely forbidding any form of consumption on their properties. In 2013, this became a minor controversy when Seattle resident Alexander Aversano pushed back after he received a notice from his landlord that all cannabis use was restricted in the apartment complex where he lived. Aversano, who legally took a medical cannabis tincture for pain management, said that he didn’t understand why (or how) a landlord could ban such products, which don’t produce odors. Eventually his landlord backed down, to applause from many observers. As criminal defense attorney Doug Hiatt told the Seattle Times, “[There’s] no way they can properly police [the ban]. What would they do, search everybody’s chocolate-chip cookies? It’s reefer madness all over.”
Still, landlords’ attempts to crack down on cannabis use among tenants have raised some thorny questions, especially considering the country’s history of uneven cannabis enforcement. According to Zillow, only 41 percent of African-Americans own their own homes, compared with 71.3 percent of white Americans. Private bans on smoking cannabis at home, coupled with public bans on smoking it in places like parks, means that many people of color have few options when it comes to exercising their legal rights.