Monthly Archives: August 2015

Marijuana Patients Facing Eviction: Why you should put your fate in the hands of twelve people who weren’t smart enough to get out of jury duty.

During my first year of law school, I lived in the bottom floor of a two-story, luxury apartment building near campus. Above me lived a couple of twenty-something-year-olds that liked to have very loud (and might I add disturbing) parties until the early morning. After several useless complaints about the noise, I gave up hope that my neighbors would stop partying and that my landlord would ever give them any kind of warning.

Anyone who has ever rented an apartment knows that, like my complaints about the loud parties, neighbors find things to complain about. Whether warranted or unwarranted, marijuana complaints are also a common source of neighbor disputes. Having spent the past year and a half representing defendants in landlord-tenant actions, I’ve witnessed my share of neighbor complaints.

Regardless of the nature of the complaint or the severity of the lease violation, one trend has been clear: landlords and tenants can reach a peaceful resolution in most cases. What this means for tenants is that they are very unlikely to have to argue a case before a judge or jury.

Now that marijuana is readily available for those living with severe health conditions and even more available in states where it has become legal, neighbor disputes about “the funk next door” are likely to take center stage in many eviction actions. Due to the recent changes in marijuana laws and the fact that very little case law is available, marijuana evictions must be analyzed against other comparable eviction cases. That said, medicated patients facing evictions can take a momentary sigh of relief knowing that there are other options. The key is to know the arguments available. Using these arguments will allow a tenant to get the best possible settlement.

My past articles have explored the discretion enjoyed by landlords when determining whether to evict a tenant believed to be using medical marijuana (marijuana eviction case). I have also described the extensive process a landlord must undergo before evicting a medical marijuana patient.

This article constitutes part one of two that will give those facing an eviction action a substantive overview of the arguments a landlord is likely to make. It will also suggest some possible defenses that may be used by a tenant.

The right to a trial by jury: arguably the tenant’s most valuable leverage in negotiations.
Most tenants are not aware of their constitutional right to a trial by jury in an eviction proceeding. This tool is especially strong in a marijuana case for several reasons:
1.) The Cost of Going to Trial: Low-income tenants often qualify for fee waivers while landlords do not. This means that tenants can file motions and make other requests at no cost, while landlords will have to spend hundreds of dollars to make responsive pleadings.
2.) The Preparation for Trial: Landlords and their attorneys will have to gather witnesses and bring them to trial with them in order to prove up their case. This costs landlords travel time as well as attorney hours.
3.) Loss of Rent Money: Jury trials in unlawful detainer proceedings may take anywhere from two to three months. During this time, landlords cannot accept rent from the tenant because accepting rent may constitute a waiver of their cause of action and can be used against them at trial.
4.) The Landlord Loses Even if he Wins: Even if landlords succeed at trial, an unlawful detainer proceeding is strictly meant to determine rightful possession of the unit. What this means is that despite winning at trial, and despite any money judgment awarded, the landlord must pursue compensation in a separate action.

The threat of a jury trial will allow the tenant to bargain for more time to remain in the unit while they find a new place to stay. Depending on the situation, the tenant may be able to remain in the unit and bargain for a probationary tenancy.

My next article will compare arguments made in unlawful detainer cases as they are the most likely to be used in marijuana cases. I will describe substantive arguments a tenant may use if and in the unlikely case that they end up in trial.

Disclaimer: This post is intended to provide general information about your rights as a tenant. It should not be understood to provide legal advice. Should you receive any court documents, please contact an attorney regarding your particular issue.