Apartment Trends Magazine February 2015 | Page 33

ASK THE LAWYER DEBORAH WILSON | SPRINGMAN, BRADEN, WILSON & PONTIUS, P.C. HUD’s latest take: Can you just “Say No” to Marijuana in subsidized housing? O n December 29, 2014, the US Department of Housing and Urban Development (“HUD”) issued a new memo entitled “Use of Marijuana in Multifamily Assisted Properties.” The purpose of the memo was to clarify HUD’s position regarding renting to applicants who use marijuana and the treatment of current residents who use marijuana, regardless of whether the use is recreational or medicinal. ment. The determination of when to terminate occupancy based on the use of marijuana may be made on a case-by-case basis. However, Owners should be aware that any lease provision (for a HUD assisted property) that specifically permits the use of marijuana, including medically prescribed marijuana is prohibited. As most Landlords already know, marijuana is considered a Schedule 1 substance under Federal law. The memo reiterates HUD’s position that the manufacture, distribution, or possession of marijuana is a federal criminal offense. The memo also makes it clear that the use of “medical marijuana” is still considered illegal under federal law, even if it is permitted under State law. This recent HUD memo states that that owners of federally assisted housing are required by the “Quality Housing & Work Responsibility Act of 1998 (QHWRA)” to deny admission to any household with a member who is determined to be, at the time of application, illegally using a controlled substance as that term is defined by the federal “Controlled Substances Act.” Additionally, QHWRA also states “Notwithstanding any other provision of law, a public housing agency or owner of federally assisted housing shall establish standards or lease provisions for continued assistance or occupancy in federally assisted housing that allow the agency or owner to terminate the tenancy or assistance for any household with a member (1) who the public housing agency or owner determines is illegally using a controlled substance; or (2) whose illegal use (or pattern of illegal use) of a controlled substance… is determined by the public housing agency or owner to interfere with the health, safety, or right to peaceful enjoyment of the premises by other residents.” The HUD memo makes it clear that current users of marijuana (even if they possess a valid medical marijuana registration card) are not eligible for admission to federally assisted housing. However, in contrast, once someone has been admitted as a Resident, the standard changes. While federal law still “allows” the owner to terminate occupancy for use of marijuana, it is not a require- While the 12/29/14 HUD memo only applies to federally assisted housing (e.g., project-based Section 8, public housing, Rural Development Section 515, etc.), it does not apply to other types of housing, such as conventional housing or the Low-Income Housing Tax Credit Program. However, the Courts and the Colorado Civil Rights Division may be looking to the federal analysis and this memo when making determination as to discrimination claims involving medicinal marijuana. In any type of rental housing, a Landlord should engage in an “interactive dialogue” with a disabled Resident requesting an accommodation, before denial of the request or proceeding with an action to terminate the tenancy. Failure to follow these guidelines and laws may result in serious sanctions/penalties, including loss of federal subsidies, injunctive action, monetary and/or punitive damages, attorney’s fees and costs. This author also recommends the use of an updated Crime Free Addendum to insure compliance with all federal laws and provide additional grounds for termination if and when a problem arises. Deborah