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