The State of Nevada legalized the use and cultivation of medical marijuana in 2014 and began allowing cannabis businesses to operate in 2015. While California voters approved the use of medical marijuana some two decades ago, California law makers only put into place a regulatory scheme in 2015 thereby allowing dispensaries to operate legally.
Cannabis law is currently a very fluid and rapidly changing area of law. The legalization of medical marijuana at the state level presents significant conflicts with federal law in numerous areas including drug policy, banking laws, criminal law and so much more. Under federal law, the use, cultivation and sale of marijuana – medical or not – is illegal. As a result of the past war on drugs, federal law provides some very severe penalties for violations of federal drug law, including forfeiture.
The federal government does have the right to seize property used in the cultivation, manufacturing or selling of cannabis. This can include real property where the owner of the real property is merely a landlord who does not participate in the cannabis business. While the federal forfeiture laws do have an “innocent owner defense” many state cannabis laws require the lease to specifically state that the lease is for purposes of cultivation, manufacturing or selling.
As noted above, this is a rapidly changing area of law. Just two days ago the Federal District Court for the Northern District of California issued a ruling (a somewhat scathing decision, in fact), based on the 2015 Appropriations Act, halting the Department of Justice from expending funds to enforce federal laws that interfere with state laws that authorize the use, distribution, possession or cultivation of medical marijuana.
Until the conflict between the state and federal laws governing the use and sale of marijuana are entirely resolved, providers of services, goods and property, including landlords (both commercial and in some cases residential) are advised to seek legal counsel and to address new contract and lease provisions such as “escape clauses” and stated compliance with state cannabis law.