Phil Querin Q&A - Medical Marijuana vs. Neighbor’s Complaint

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August 23, 2016
Phil Querin
MHCO Legal Counsel
Querin Law

 

Question. We have a 55 and older Park with 164 homes.  The residents own their homes but lease the land.  We have an individual that is growing marijuana in her back yard.  She says she has a medical card which makes it legal to grow and also has a handicap which makes it perfectly lawful.  The neighbors are complaining about the smell.  We have nothing in our Lease, Rules & Regulations or Statement of Policy that say residents are not allowed to grow. This is the first time I have come across this and I want to make sure to get it right as whatever the decision is will set a precedent.

 

 

Answer.   Notwithstanding the fact that you do not have anything in your Rules or Rental Agreement prohibiting the use, growing, or selling marijuana does not mean you cannot prohibit the activity. Granted, it would be far better if you had something in the park documents about this topic, but the still require that residents obey state and federal laws, rules, and ordinances. 

 

Here is the short version of my answer:

 

Under the Federal Controlled Substances Act, 21 U.S.C. § 801, et seq. (“the Act”), it is illegal to manufacture, distribute, and possess marijuana, also known as “cannabis.  Under the Act, possession of marijuana, even when used for medical purposes, is a violation of Federal law.  

 

In Oregon, medical use of cannabis is legal, subject to the limitations set forth in ORS 475.300 to 475.342.  Commencing on July 1, 2015, subject to certain limitations and restrictions, the recreational use of marijuana also became legal. 

 

Federal law supersedes state law where there is a direct conflict between these laws.  This means that even though Oregon permits medical and recreational use of marijuana, and marijuana products, Federal law controls, and these activities remain illegal.  (See, Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 348 Ore. 159, 230 P.3d 518 (2010)).

 

Accordingly, find the sections in your Rules and Rental Agreements requiring that residents obey the law. Include it in a 30-day notice under ORS 90.630(1)(a), which provides:

“…the landlord may terminate a rental agreement that is a month-to-month or fixed term tenancy for space for a manufactured dwelling or floating home by giving to the tenant not less than 30 days’ notice in writing before the date designated in the notice for termination if the tenant: (a)Violates a law or ordinance related to the tenants conduct as a tenant, including but not limited to a material noncompliance with ORS 90.740 (Tenant Obligations);

 

ORS 90.740(3) (Tenant Obligations) provides:

 

Behave, and require persons on the premises with the consent of the tenant to behave, in compliance with the rental agreement and with any laws or ordinances that relate to the tenants behavior as a tenant.

 

You may also cite ORS 90.740(4)(j) in the 30-day notice. It provides that tenants must:

 

Behave, and require persons on the premises with the consent of the tenant to behave, in a manner that does not disturb the peaceful enjoyment of the premises by neighbors.

 

You should then enact a rule change, and institute a policy that prospectively prohibits the use, cultivation and selling of marijuana and marijuana products.