Guide to Your Rights: Are You Allowed to Smoke In Your Apartment if You Have a Med Card?

Even in US states where cannabis use is legal, it remains unlawful to smoke the substance anywhere in public. As a result, most people opt to smoke in their private homes. But what if your home is an apartment? This puts you in a more complicated situation when it comes to smoking cannabis. Technically, you are in a private residence but do not own the property, and you share the building with other neighbors. These features of apartment living make your smoking permissions a little less clear.

Is an apartment in a building complex “private” property for smoking cannabis? Can a landlord forbid medical cannabis patients from smoking in their apartments? Can your neighbors stop you from smoking cannabis in your apartment? Although laws regarding cannabis use in apartments can vary between different states, we will provide some general information that will help address the ambiguities of apartment smoking. To get more specific details about your rights, consult your state’s regulations. 

Understanding Federal Laws

Despite progressive state and local laws that allow for medicinal and even recreational cannabis use, cannabis remains federally illegal in the United States. This means that, at the federal level, the production, distribution, possession, or use of cannabis products are still considered to be criminal offenses. 

The federally illegal status of cannabis also means that federal, and even state, anti-discrimination laws do not require leasing offices to approve a patient’s request to use medical cannabis as reasonable accommodation for a disability. The U.S. Department of Housing and Urban Development (HUD) states that, while there are certain states where people are legally allowed to obtain and use cannabis for diagnosed disabilities, property managers can deny reasonable accommodation requests pertaining to medical cannabis use because users of illegal drugs are disqualified from legal protection according to the definition of disability in the law.

Since the United States Government maintains that all cannabis use is illegal, protections that prohibit housing discrimination such as the Americans with Disabilities Act (ADA), and the Fair Housing Act (FHA), do not apply to medical cannabis users. 

Furthermore, federally-funded low-income housing properties are even required to deny assistance to medical cannabis patients. Government-sponsored housing services cannot provide support for tenants who are known users of illegal drugs, and because cannabis is considered an illegal drug according to the US government, medical-use patients can unfortunately be refused affordable public housing for having a state-legal prescription for therapeutic cannabis. 

Landlords and Medical Cannabis

Medical cannabis laws allow patients to legally obtain and consume cannabis, but these laws do not require landlords to permit smoking on their rental properties. A building with a no-smoking policy can essentially prohibit all forms of smoking, including smoking medical cannabis.

Essentially, there are no laws in place that protect a medical cannabis user’s ability to smoke on a rental property with a non-smoking policy. Therefore, if a rental agreement contains a no-smoking policy, the landlord can evict any tenant who violates this contract by smoking, regardless of whether or not the person is smoking cannabis for medicinal use. 

Additionally, many cities and states broadly prohibit renters from smoking in apartment buildings. This means there may be state and local smoking laws that could apply to your smoking rights, which may not be mentioned in your lease, so it is good to do some research on the smoking policies specific to your area.

What if your building allows smoking? In this case, you may be able to smoke in your apartment. If a landlord has not banned cannabis use in the building, then you would technically be able to smoke cannabis in your apartment. Preferably, you would consult your landlord first and receive permission in writing.

However, even in buildings that allow smoking, the management may still prohibit cannabis use on the property.  A complete ban on the use or possession of cannabis products does not violate any fair housing laws, even where marijuana has been legalized by local ordinance or state statute. Since cannabis possession and use, even for medical purposes, violates federal law, management can reject patients’ appeals for accommodation because allowing federally criminal activity on a property requires “undue administrative burden” for the owners. 

Making Progress at the State Level

There are nevertheless examples of potential progress for states where medical cannabis use is legal. Depending on local laws, it may be possible for a tenant to claim that a property owner is discriminating against someone with a disability by denying them housing or evicting them for medical cannabis use. For example, in 2018, Navy veteran Mary Cease was denied public housing in Pennsylvania because she was open about her legal use of medical cannabis to treat post-traumatic stress disorder (PTSD) and chronic back pain.

Following years of rejected appeals, the Pennsylvania Commonwealth Court mandated that the housing authority must establish explicit standards for evaluating cannabis patient applicants, due to the ambiguity of what “illegally using a controlled substance“ means when a substance’s use was prohibited by federal law but permitted under state law. The housing authority had to provide its own policies for cannabis, and then reassess Cease’s application for housing. 

Although Cease’s case is not yet decided, the court majority’s criticism of the law’s phrasing was a small movement in favor of granting more rights to medical cannabis users in need of public services. However, there are similar cases where the results were not beneficial for medical cannabis users in the end, so it is still uncertain whether the outcome in the Pennsylvania case will end up supporting cannabis patients’ rights. 

The Bottom Line

Unfortunately, there are no laws that protect anyone’s right to smoke on a rental property—even medical cannabis patients. If your lease or local laws prohibit smoking in your apartment, there is no requirement that the property management make accommodations for smoking medical cannabis. If your lease allows for smoking and doesn’t explicitly forbid cannabis use, you may be able to smoke cannabis in your apartment. It might be good to consult your landlord for permission, if it would make you feel comfortable. However, they may also deny your request, so be prepared for any outcome. 

Most importantly, review your state’s laws on housing discrimination and medical cannabis patients’ rights. Particularly, if your lease allows for smoking and is not clear about whether cannabis is forbidden at your residence, your landlord may not be allowed to evict you for smoking cannabis in your home. The rules on housing and cannabis are still developing, and there are emerging possibilities for how future conflicts between state cannabis laws and federal drug policies will alter the rights of medical cannabis users.

In the meantime, you can try some alternatives to smoking if you need to get around these laws. Edibles, tinctures, topicals, and other similar forms of cannabis are discreet and easy to consume without alerting neighbors or landlords of your private activities. There are also a few handy ways to eliminate cannabis smells in a pinch. Hopefully, laws will move in favor of medical cannabis patients in the future so these measures will not be necessary forever.