Landlord Finds Tenants Smoking Pot.
Question
I need to know my recourse for drugs in the house. I found water pouring out under the house. I made emergency entry to a door that says “KEEP OUT.” Upon opening the door, there was a very strong smell of pot smoke. I had the overflowing toilet repaired and now I want to give notice. What form do I use for Oregon?
Answer
You do not say anything regarding the terms of the lease agreement. If the tenants are month-to-month, it would be simplest to give notice of termination in accordance with OR law and avoid possible issues that I’ll mention briefly below. Similarly, if they are on a fixed term lease that is nearing its end, it would be simplest to notify them that you will not be extending or renewing the lease.
I assume you know something about potential issues related to illegal drug use in rental units, including the matter of possible property forfeiture under federal or state laws if a landlord doesn’t deal with the problem when the landlord is aware of it. While personal use by a tenant would likely not become a major problem for the landlord, landlords need to realize that where there is use there may also be dealing and dealing is usually considered a more serious issue. I won’t provide further discussion of this issue here.
However, use of pot has become a significantly more complicated issue in recent years, as states have passed laws providing for medical marijuana use. As you probably know, OR is one of the states now allowing medical marijuana use. Knowing whether a landlord can proceed against a tenant using pot may depend on being able to determine if the tenant (1) has the right to possess and use medical marijuana in accordance with state law, (2) is only using what has been purchased in accordance with state law, and (3) is not sharing it with other tenants of the property or visitors to the property, as well as other possible issues. Furthermore, in a state that allows medical pot or in a state that allows recreational use of pot, it is still a fact that use is illegal under federal law even though usually not prosecuted under the current Administration’s Attorney General against medical use under state laws.
Whenever accusing someone of anything, particularly of an illegal activity, one must be sure that he/she can prove the claim, preferably by having another disinterested party as a witness. Would you be able to testify as to how you know that it was pot smoke? If you hired an independent plumber to fix the toilet, did the plumber notice the pot odor?
Tenants may also claim that smoking pot is part of their religion and so they are protected by anti-discrimination laws. I’ve not heard of such a claim being given approval by any court.
If your lease agreement contains a prohibition against smoking inside the property, you could consider including that violation in addition to or instead of their use of possibly illegal drugs. If you need information regarding issues related to prohibition of smoking, let me know.
I am not an attorney and cannot give you legal advice. I can only mention procedures that I used or considered using during my many years’ experience as a landlord and as a licensed property manager. Because of the complexities of the pot smoking issue and the fact that there are vast differences in laws and opinions among different jurisdictions, I am unwilling to suggest what I would do if I myself ran into this particular situation.
If you are unable to wait until the end of the particular lease term or find another reason to terminate the lease other than considering it as illegal drug use without certainty that it is such, I advise you to consult a competent experienced attorney who specializes in representing landlords, is knowledgeable about OR pot laws, and, if possible, has knowledge regarding the judges in the court where any case would be held related to the matter if the tenants decided to fight termination of their lease.
You may have a responsibility to report illegal activity to the law enforcement agency of jurisdiction. Using an attorney when an illegal activity is a problem may also reduce the chances of retaliatory actions against the landlord by the tenants.
The forms available on the site that are specific to OR and may relate to terminating the lease include:
Notice of Breach of Specific Provisions of Written Lease with Right to Cure Residential Lease
Notice of Breach of Specific Provisions of Written Lease with No Right to Cure Residential Lease
Notice of Termination of Residential Lease