How HUD Guidelines Impact Medical Marijuana Patients in Federally-Subsidized Housing

image of Subsidized Housing Complex - Marijuana Mortgages: How HUD Guidelines Impact Medical Marijuana Patients in Federally-Subsidized Housing
Subsidized Housing Complex – image courtesy of Unsplash under Creative Commons 0 license

It’s an all-too-common dilemma occurring across the United States: someone receiving federal housing
assistance — such as Section 8 — receives a devastating cancer diagnosis. Per their doctor’s
recommendation, they begin using medical marijuana to help treat the effects of the illness. After
receiving complaints from other tenants who suspect marijuana usage, the landlord gives the tenant
notice of eviction for possessing an illegal substance in a federally-subsidized housing unit. While the
renter may plead for a second chance or even offer to give up future medical marijuana usage, chances
are that the landlord will be unwilling to reconsider the eviction.

Federal and State Laws Clash

The clash between federal and state laws are at the heart of this conundrum. Although medical
marijuana is approved in 28 states, it remains illegal under the federal Controlled Substances Act, which
is how landlords justify evicting tenants for possessing an illegal substance.

When confronted with a tenant who may be using medical marijuana, landlords generally feel like their
hands are tied. They don’t want to risk breaking federal law or lose their federal funding, after all. But
there are some misconceptions at play here, which we break down below.

To Evict or Not to Evict, That is the Question

First of all, in order for landlords to rent to low-income households receiving Section 8 funding, they are
contractually bound by the Housing Authority Payment (HAP), and must follow federal Housing and
Urban Development (HUD) regulations. One such regulation is the Quality Housing and Work (pdf 74.4 KB)
Responsibility Act of 1998 (QHWRA), which states that the landlord must “establish lease provisions for
continued assistance in federally assisted housing that allow the owner to terminate the tenancy or
assistance,” should the landlord discover that a tenant is in possession of an illegal substance. What this
means is that, under QHWRA guidelines, landlords retain the right to evict or terminate assistance at all
times. To simplify, the regulation does not state that landlords are required to evict or terminate
assistance—they are required to preserve their discretion when such situations arise. This could mean
choosing to evict — or not evict — a tenant.

Even with this discretion offered by the statute, many landlords continue to believe that eviction is the
only solution when confronted with medical marijuana in properties.

HUD Attempts to Clarify

In response to the confusion, HUD released an official statement (pdf 90.7 KB) in 2011 that explicitly confirms that
landlords are NOT required to evict tenants found in possession of marijuana in states that have
legalized it for either medical or recreational purposes.

In keeping with federal law, the statement specifically prohibits landlords from affirmatively permitting
possession and use of marijuana, but instructs landlords to “establish policies which allow the
termination of tenancy of any household with a member who is illegally using marijuana medical
marijuana in federally-subsidized housing.” The statement goes on to give landlords and PHAs
“discretion to determine, on a case-by- case basis, the appropriateness of program termination of
existing residents for the use of medical marijuana.”

Navigating the myriad federal and state regulations pertaining to medical and recreational marijuana
can be daunting and difficult. No matter your situation, if you’re in the market for a new home, I would
love to speak with you about your options. Contact me at michaela@michaelaphillips.com or by phone
at 303.579.5517.