An Eviction Action Has Been Filed Against You: But How Did We All Get Here?

Is the smell of your “legal pot” violating your neighbor’s right to relax? Over the past twenty years, many states have recognized the medical benefits of marijuana and passed state laws allowing qualified patients to cultivate and use marijuana. Medical marijuana laws such as the Compassionate Use Act (CUA) protect patients from criminal prosecution but have created a legal uncertainty as to the effects they will have on neighbor disputes and eviction actions. The issue raised by annoyed neighbors and medical marijuana users is whether the CUA requires landlords to rent to (or continue renting to) a tenant knowing that the tenant is legally using medical marijuana. Marijuana usage is still illegal under federal law and, as such, a landlord is within his right to refuse to rent to someone based on his or her marijuana use.

A recent article for The Oregonian told annoyed neighbors: “there really isn’t much” they can do about the smell of “legal pot” in apartment complexes. An article for the SF Gate, Fastest Ways to Evict Bad Tenants, appears to disagree. That article provides many routes an annoyed neighbor and/or landlord can take to get rid of the smell of pot or the bad tenant. Who is right? Actually, they both are.

My last blog post, HUD Has Cleared the Smoke, shed some light on the discretion afforded to landlords in determining whether or not to proceed with evicting a tenant living in a federally subsidized housing unit. But what happens when and if a neighbor complains about your medical marijuana use? How does this give your landlord the authority to proceed with an eviction against you?

This blog post attempts to answer these questions. Regardless of whether you live in subsidized housing or not, eviction actions are generally carried out in the same manner. I will begin by walking you through two of the most relevant covenants and provisions of your tenancy/lease agreement. These covenants and provisions provide the landlord with the legal right to terminate your tenancy. I will then direct you to the specific statutes that landlords use in court.

Take a look at your apartment lease agreement. It’s probably buried in a drawer somewhere along with the rest of your important documents. Or perhaps you signed a fancy online lease that you quickly glanced at before heading out to do something more interesting. Briefly scan the documents you signed and you will find that it contains numerous covenants and provisions that are designed to protect the landlord’s investment and maximize his profits for both your leased apartment unit as well as any neighboring units. While lease agreements take many shapes and forms, there are typical provisions that you can expect to see. For example, most lease agreements contain a provision that prohibits smoking on the premises. A “no smoking” provision is likely designed to prohibit smoking in all forms, and to eliminate a source of complaints by other tenants. Such a restriction is also meant to protect the property for future tenants.

In addition to a “no-smoking” provision, lease agreements also contain a provision that generally reads as follows: If Lessee shall violate any covenant or provision of this lease, Lessor shall have the right to terminate this lease or Lessee’s right to possession pursuant to the lease upon appropriate legal notice to Lessee.

A common response to such provisions runs somewhere along the line of “Wait. What?” You are reading correctly. Your lease agreement can actually give your landlord the right to terminate your tenancy (evict you) for any violation of that long list of covenants and provisions you probably didn’t bother to read. Most tenancy agreements will not go into the gory details of how this default provision can be used in arbitrary and sometimes discriminatory ways to evict “problem tenants.” This blog post will not address the multitude of issues that arise from this default provision. I will only focus on how it impacts the initial filing of an eviction action.

By now, most will have connected the dots and realize that these provisions give the landlord the right to evict a tenant for any breach, regardless of how trivial it is. Is this even legal? Well, it is and it isn’t. California law provides that if the tenant breaches a material provision of the rental agreement, the landlord may commence termination of tenancy by notifying the tenant and initiating the procedure for unlawful detainer. CCP § 1161

Wait a minute, your lease agreement says that your landlord can evict you for any violation of the lease agreement and California state law appears to say that you can only be evicted for a “material breach” (whatever that means). Who’s right? The answer lies somewhere in between the signed lease provisions and state law.

A breach to the “no smoking” provision often forms the basis for an eviction action where medical marijuana is involved. In most cases, the process begins when an annoyed neighbor complains about the smell of marijuana or where a visible Bob Marley poster gives rise to some suspicion that the tenant may be in possession of marijuana. If the landlord believes this to be true, they may then move forward with an eviction action by serving a tenant with either “3-Day Notice to Perform or Quit,” or a “3-Day Notice to Terminate Tenancy.” The former requires the tenant to “cure the breach” by refraining from smoking marijuana on the premises within the next three days or leave. The latter does not give the tenant the opportunity to “cure the breach” and requires him or her to move out within three days.

But what happens once the three days are up? What if you don’t move out? That’s when the dreaded unlawful detainer action begins. An unlawful detainer action is a lawsuit that the landlord must file against you to force you to move out. Whether the landlord will be successful in the eviction action will depend on whether there is sufficient evidence for the judge or jury to believe that you breached your lease agreement, (i.e. that you really were using marijuana on the premises). It will also depend on whether the jury believes that using marijuana on the premises, in that specific instance, constitutes a “material breach.

My next blog post will walk you through the much-dreaded unlawful detainer action. I will clarify what constitutes a “material breach,” and explain what kind of proof is required in order to evict you.

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