Author Archives: Ruby Renteria

Marijuana Patients Facing Eviction: Responding to an Eviction Action

A recent article on Canna Law Blog touched on aspects of the landlord/tenant relationship that have been taking center stage in the marijuana policy debate in states where recreational marijuana or medical marijuana has been legalized. The article correctly provided a detailed overview of eviction actions as they apply to marijuana dispensaries and importantly focused on the specific laws and regulations that govern commercial tenancies. As marijuana dispensaries pop up throughout the United States, a multitude of legal issues will arise with them. For example, are all marijuana contracts illegal as contrary to public policy? In other words, given that marijuana is not yet legal at the federal level, are people who contract with marijuana dispensaries forming an illegal, unenforceable contract? These questions will be addressed in articles to come.

For now, I will focus on one specific contract: the tenancy lease. Many articles have correctly analyzed issues arising out of commercial tenancies (such as dispensaries). While some articles have accurately indicated that commercial evictions are often based on allegations of “illegal activity,” many have improperly classified the issues as applicable to all landlord and tenant relationships. I intend to set the record straight.

This article is part two of a mini-series that examines the substantive aspects of eviction actions filed against tenants who use marijuana. It will provide tenants with a detailed description of the arguments a landlord may make in an eviction action for marijuana use.

Part one gave tenants some background on their right to a jury trial and encouraged tenants to use this right to leverage negotiations in their favor. Over the past two years of both attending court to assist in client representation and observing the unlawful detainer calendar on a weekly basis, I have seen only ONE defendant request a jury trial. The judge in that case firmly declared that he would never deny a defendant’s right to a trial by jury. I was motivated to write the last article because the judge’s statements caused a change in the landlord attorney’s attempt to reach an agreement and negotiate the case. The landlord attorney walked back and forth between the defendant and his client in an attempt to get them to reach an agreement so as to avoid the lengthy (and might I add, expensive) trial.

The goal of this article is to provide tenants with additional leverage in settlement negotiations. As described in the pervious article, there are many benefits to settlement such as: reduced expenses, reduced stress, privacy, predictability, saved time, and (perhaps most importantly) flexibility with regards to the outcome. While a judgment may be legally correct, the outcome may not always be fair to both tenants as one will ultimately end up with nothing (other than a hefty attorney bill). Settlements allow for both sides to potentially reach terms that are mutually beneficial. Ultimately, this article will provide tenants with information that, if used in negotiations, will result in fair outcomes.

First, I will examine the specific laws that allow a landlord to begin an eviction action. Second, I will explain what the laws mean for a tenant and how a landlord may use the law against a marijuana user. And third, I will lay out the potential arguments to be raised by the tenant.


The Law: Evictions in General

As discussed in my previous articles, an unlawful detainer action (eviction action) is the process by which a landlord may legally evict a tenant. Evictions arise for many reasons. Perhaps the most common are non-payment of rent and breach of the lease agreement.

Under California law, and for the purposes of this article, a landlord is a person who owns a residential rental unit. The landlord rents the unit to a tenant for that tenant to live in. The only person or entity that has standing to evict a tenant is the owner of the property. As discussed earlier, the landlord may evict tenants for their actions as well as their guests’ actions. In most instances, a tenant’s guests are, in the eyes of the law, an extension of the tenant named on the lease agreement. Unlike standing, where only the landlord may begin the eviction action, if a tenant’s guest is smoking marijuana on the premises, the law views this as if the tenant himself is the one smoking marijuana.

What Gives Rise to an Unlawful Detainer Action?

Eviction actions in California are governed by the California Code of Civil Procedure Section 1161(3). This section provides that a tenant who has failed to perform a condition or covenant of the lease agreement is guilty of unlawful detainer if the tenant has been served with a “3-Day Notice.” In other words, a landlord who suspects that a tenant is using marijuana in his unit may begin the eviction process by serving a “3-Day Notice.”

The Notice must:

  1. Be in writing;
  2. Say the full name of the tenant or tenants;
  3. Have the address of the rental property;
  4. Say what the tenant did to violate the lease or rental agreement; and
  5. Say the tenant has the chance to fix the problem or move out in 3 days.

Tenants who have been served with a “three day notice” should make sure that it complies with the statutory requirements. Failure to comply with any of these requirements will render the entire case moot and force the landlord to reissue the notice until it complies with all the requirements. Courts have given the requirements of Section 1161(3) strict interpretations. This means that the landlord must meet all the requirements and that if he fails to meet these requirements (even slightly) courts must rule in favor of the tenant. For example, where a landlord fails to include the total amount of rent due in a “3-Day Notice,” courts will generally require the notice to be corrected and served again.

If the landlord files an eviction action based on a faulty notice, they will have wasted approximately three weeks in court proceedings only to show up to court and be told that they will need to serve the tenant with an adequate notice. This means more time for the tenant to remain on the premises and to try to negotiate with the landlord.

Given the fact that most (if not all) lease agreements include a “no smoking provision,” using medical or recreational marijuana in a rental unit is likely to constitute a violation of a tenant’s lease agreement. Therefore, if a lease agreement prohibits smoking, Section 1161(3) allows a landlord to serve the much-dreaded “3-Day Notice” and begin the eviction process. However, at this point, the tenant is not yet “guilty” of unlawful detainer.

Failure to Perform a Covenant or Condition of the Lease Agreement

Tenants should review their lease agreement to verify that the lease agreement does in fact include such a provision. If a lease agreement fails to prohibit smoking, this specific argument may not be used against the tenant. The reason for this is that a tenant cannot be in breach of a lease provision that does not exist in their lease agreement.

It’s important for tenants to be aware that a landlord has, at his disposal, many other arguments that he may raise in a marijuana eviction case. For example, violations of implied or express covenants, such as creating a nuisance, possession of an illegal substance, or using the unit to carry out illegal activity, are all grounds for a landlord to initiate the eviction process. Unlike the “no-smoking” provision, these violations exist regardless of whether they were expressly included in the given lease agreement. Landlords have an unconditional [statutory] right to raise these arguments. Likewise, tenants have a duty to comply with them.

When is a Tenant “Guilty” of Unlawful Detainer?

Within the context of the “no-smoking” provision, using marijuana in an apartment is a breach of the lease agreement. This breach allows the eviction process to begin; however, it does not necessarily mean that a tenant is guilty of unlawful detainer. Despite the law’s language favoring landlords, a landlord that decides to pursue an eviction action still bears the burden of proving that the tenant has committed an unlawful detainer. Ashlers v. Barrett, 4 Cal.App158, 160 (1906).

How does a landlord prove that a tenant is “guilty” of unlawful detainer?

In order to prove that a tenant is “guilty” of unlawful detainer the landlord must show: 1.) that the marijuana usage at issue in the case constitutes a material breach and 2.) that the tenant has failed to vacate the unit within the notice period. Given the fact that the second element is very easy to prove, this article will focus on the first element.

First, the landlord must have proof that a tenant in fact breached the lease agreement by committing a specific act that the lease agreement prohibits. Where marijuana is involved, it may be based on testimony from someone who observed the tenant using marijuana. Unless a landlord or neighbor can testify under oath that he saw the tenant using marijuana, the landlord will likely run into problems trying to prove that the tenant actually used marijuana on the premises.

Many landlords don’t live on the same premises as their tenants; therefore, complaints about marijuana are likely to come from other tenants who claim that they can smell pot. This argument is weak, primarily because it is difficult to show that the smell is actually coming from one particular unit (assuming the tenant hasn’t taken it upon himself to “hot box” the apartment unit). In an eviction action that does not involve an eyewitness, the tenant will likely be required to testify under oath. Tenants should be aware of the consequences of lying under oath. If a tenant has indeed used marijuana on the premises, it’s in their best interest to try to negotiate a settlement. However, a tenant who has used marijuana on the premises can use this lack of evidence to negotiate additional time to move out or possibly enter into a probationary tenancy.

Second, the landlord must prove that the marijuana usage in that particular instance constitutes a “material breach.” Courts have declared that breaches that are only technical or trivial (as opposed to “material”) will not support forfeiture in an unlawful detainer action in an unlawful detainer action. See McNeece v. Wood, 204 Cal 280, 285 (1928). Hence, even if a tenant has been seen smoking marijuana in their rental unit, the tenant is not necessarily guilty of unlawful detainer unless the particular instance is so severe that it constitutes a “material breach.” For example, smoking marijuana in a rental unit every day is very likely to constitute a material breach. However, a single time that involved a guest is not likely to constitute a material breach because most courts recognize that one instance is not significant enough to result in an eviction.

While not covered extensively in this article, tenants should keep in mind that they have additional defenses such as substantial compliance with a covenant. Knight v. Black, Cal. App. 3d. (1985) Additionally, courts have not drawn a clear line between a trivial breach and a material breach. Thus, even where a given breach is deemed “material” the tenant may still argue that enforcement would be unconscionable and inequitable.

My next article will specifically look at marijuana evictions as they arise in public housing. As discussed in a previous article, while landlords are required to follow the eviction process requirements for all tenancies, public housing tenants stand to lose much more. I will also analyze the potential effects of a recently proposed HUD regulation.

Remember, this is an article, not an attorney. If the above matters apply to you please seek legal advice from you local Legal Aid or pro-bono attorney.

Marijuana Patients Facing Eviction: Why you should put your fate in the hands of twelve people who weren’t smart enough to get out of jury duty.

During my first year of law school, I lived in the bottom floor of a two-story, luxury apartment building near campus. Above me lived a couple of twenty-something-year-olds that liked to have very loud (and might I add disturbing) parties until the early morning. After several useless complaints about the noise, I gave up hope that my neighbors would stop partying and that my landlord would ever give them any kind of warning.

Anyone who has ever rented an apartment knows that, like my complaints about the loud parties, neighbors find things to complain about. Whether warranted or unwarranted, marijuana complaints are also a common source of neighbor disputes. Having spent the past year and a half representing defendants in landlord-tenant actions, I’ve witnessed my share of neighbor complaints.

Regardless of the nature of the complaint or the severity of the lease violation, one trend has been clear: landlords and tenants can reach a peaceful resolution in most cases. What this means for tenants is that they are very unlikely to have to argue a case before a judge or jury.

Now that marijuana is readily available for those living with severe health conditions and even more available in states where it has become legal, neighbor disputes about “the funk next door” are likely to take center stage in many eviction actions. Due to the recent changes in marijuana laws and the fact that very little case law is available, marijuana evictions must be analyzed against other comparable eviction cases. That said, medicated patients facing evictions can take a momentary sigh of relief knowing that there are other options. The key is to know the arguments available. Using these arguments will allow a tenant to get the best possible settlement.

My past articles have explored the discretion enjoyed by landlords when determining whether to evict a tenant believed to be using medical marijuana (marijuana eviction case). I have also described the extensive process a landlord must undergo before evicting a medical marijuana patient.

This article constitutes part one of two that will give those facing an eviction action a substantive overview of the arguments a landlord is likely to make. It will also suggest some possible defenses that may be used by a tenant.

The right to a trial by jury: arguably the tenant’s most valuable leverage in negotiations.
Most tenants are not aware of their constitutional right to a trial by jury in an eviction proceeding. This tool is especially strong in a marijuana case for several reasons:
1.) The Cost of Going to Trial: Low-income tenants often qualify for fee waivers while landlords do not. This means that tenants can file motions and make other requests at no cost, while landlords will have to spend hundreds of dollars to make responsive pleadings.
2.) The Preparation for Trial: Landlords and their attorneys will have to gather witnesses and bring them to trial with them in order to prove up their case. This costs landlords travel time as well as attorney hours.
3.) Loss of Rent Money: Jury trials in unlawful detainer proceedings may take anywhere from two to three months. During this time, landlords cannot accept rent from the tenant because accepting rent may constitute a waiver of their cause of action and can be used against them at trial.
4.) The Landlord Loses Even if he Wins: Even if landlords succeed at trial, an unlawful detainer proceeding is strictly meant to determine rightful possession of the unit. What this means is that despite winning at trial, and despite any money judgment awarded, the landlord must pursue compensation in a separate action.

The threat of a jury trial will allow the tenant to bargain for more time to remain in the unit while they find a new place to stay. Depending on the situation, the tenant may be able to remain in the unit and bargain for a probationary tenancy.

My next article will compare arguments made in unlawful detainer cases as they are the most likely to be used in marijuana cases. I will describe substantive arguments a tenant may use if and in the unlikely case that they end up in trial.













The Process: What this means to you as a tenant:



You are still not legally required to vacate the unit.


You are still not legally required to vacate the unit.






An Eviction Action Has Been Filed Against You: But How Did We All Get Here?

Is the smell of your “legal pot” violating your neighbor’s right to relax? Over the past twenty years, many states have recognized the medical benefits of marijuana and passed state laws allowing qualified patients to cultivate and use marijuana. Medical marijuana laws such as the Compassionate Use Act (CUA) protect patients from criminal prosecution but have created a legal uncertainty as to the effects they will have on neighbor disputes and eviction actions. The issue raised by annoyed neighbors and medical marijuana users is whether the CUA requires landlords to rent to (or continue renting to) a tenant knowing that the tenant is legally using medical marijuana. Marijuana usage is still illegal under federal law and, as such, a landlord is within his right to refuse to rent to someone based on his or her marijuana use.

A recent article for The Oregonian told annoyed neighbors: “there really isn’t much” they can do about the smell of “legal pot” in apartment complexes. An article for the SF Gate, Fastest Ways to Evict Bad Tenants, appears to disagree. That article provides many routes an annoyed neighbor and/or landlord can take to get rid of the smell of pot or the bad tenant. Who is right? Actually, they both are.

My last blog post, HUD Has Cleared the Smoke, shed some light on the discretion afforded to landlords in determining whether or not to proceed with evicting a tenant living in a federally subsidized housing unit. But what happens when and if a neighbor complains about your medical marijuana use? How does this give your landlord the authority to proceed with an eviction against you?

This blog post attempts to answer these questions. Regardless of whether you live in subsidized housing or not, eviction actions are generally carried out in the same manner. I will begin by walking you through two of the most relevant covenants and provisions of your tenancy/lease agreement. These covenants and provisions provide the landlord with the legal right to terminate your tenancy. I will then direct you to the specific statutes that landlords use in court.

Take a look at your apartment lease agreement. It’s probably buried in a drawer somewhere along with the rest of your important documents. Or perhaps you signed a fancy online lease that you quickly glanced at before heading out to do something more interesting. Briefly scan the documents you signed and you will find that it contains numerous covenants and provisions that are designed to protect the landlord’s investment and maximize his profits for both your leased apartment unit as well as any neighboring units. While lease agreements take many shapes and forms, there are typical provisions that you can expect to see. For example, most lease agreements contain a provision that prohibits smoking on the premises. A “no smoking” provision is likely designed to prohibit smoking in all forms, and to eliminate a source of complaints by other tenants. Such a restriction is also meant to protect the property for future tenants.

In addition to a “no-smoking” provision, lease agreements also contain a provision that generally reads as follows: If Lessee shall violate any covenant or provision of this lease, Lessor shall have the right to terminate this lease or Lessee’s right to possession pursuant to the lease upon appropriate legal notice to Lessee.

A common response to such provisions runs somewhere along the line of “Wait. What?” You are reading correctly. Your lease agreement can actually give your landlord the right to terminate your tenancy (evict you) for any violation of that long list of covenants and provisions you probably didn’t bother to read. Most tenancy agreements will not go into the gory details of how this default provision can be used in arbitrary and sometimes discriminatory ways to evict “problem tenants.” This blog post will not address the multitude of issues that arise from this default provision. I will only focus on how it impacts the initial filing of an eviction action.

By now, most will have connected the dots and realize that these provisions give the landlord the right to evict a tenant for any breach, regardless of how trivial it is. Is this even legal? Well, it is and it isn’t. California law provides that if the tenant breaches a material provision of the rental agreement, the landlord may commence termination of tenancy by notifying the tenant and initiating the procedure for unlawful detainer. CCP § 1161

Wait a minute, your lease agreement says that your landlord can evict you for any violation of the lease agreement and California state law appears to say that you can only be evicted for a “material breach” (whatever that means). Who’s right? The answer lies somewhere in between the signed lease provisions and state law.

A breach to the “no smoking” provision often forms the basis for an eviction action where medical marijuana is involved. In most cases, the process begins when an annoyed neighbor complains about the smell of marijuana or where a visible Bob Marley poster gives rise to some suspicion that the tenant may be in possession of marijuana. If the landlord believes this to be true, they may then move forward with an eviction action by serving a tenant with either “3-Day Notice to Perform or Quit,” or a “3-Day Notice to Terminate Tenancy.” The former requires the tenant to “cure the breach” by refraining from smoking marijuana on the premises within the next three days or leave. The latter does not give the tenant the opportunity to “cure the breach” and requires him or her to move out within three days.

But what happens once the three days are up? What if you don’t move out? That’s when the dreaded unlawful detainer action begins. An unlawful detainer action is a lawsuit that the landlord must file against you to force you to move out. Whether the landlord will be successful in the eviction action will depend on whether there is sufficient evidence for the judge or jury to believe that you breached your lease agreement, (i.e. that you really were using marijuana on the premises). It will also depend on whether the jury believes that using marijuana on the premises, in that specific instance, constitutes a “material breach.

My next blog post will walk you through the much-dreaded unlawful detainer action. I will clarify what constitutes a “material breach,” and explain what kind of proof is required in order to evict you.

HUD Has Cleared the Smoke: It Is Now Safe for Landlords and Public Housing Agencies to Come Down

By now, most have heard the typical story. An elderly woman is diagnosed with cancer. With her doctor’s recommendation, she has turned to medical marijuana to help treat the effects of her ailments. But she also relies on federal housing assistance to pay rent. Sooner or later her landlord will give her notice informing her that she’s being evicted from her federally-subsidized housing unit because she is in possession of an illegal substance. She will likely go through unlawful detainer court proceedings. Upon losing her eviction case, she will have nowhere to go, her symptoms will worsen, and she will face homelessness.

This is the situation faced by many Americans who need medical marijuana to treat their illnesses. California’s Compassionate Use Act allows patients to possess and cultivate marijuana for personal medical use. Landlords rely on the fact that marijuana is currently still illegal under the federal Controlled Substances Act to justify eviction of tenants for possessing an illegal substance. In most cases landlords rely on unsubstantiated neighbor complaints and suspicions about marijuana usage as the basis for their evictions. Many tenants plead for a second chance to remain in their units and in some cases are willing to forego medical marijuana all together in exchange for not losing their housing. But landlords are generally unwilling to reconsider the eviction action, often indicating that they have to follow federal law or risk losing their federal funding.

Approximately 4.8 million households in the United States receive financial assistance through the federally subsidized housing programs of the United States Department of Housing and Urban Development (HUD). HUD programs target low-income individuals living with disabilities and are aimed at creating affordable housing opportunities. This article will focus HUD’s Housing Choice Voucher Program (Section 8) to demonstrate the high degree of discretion afforded to landlords receiving HUD funding. This article will also clarify why these eviction actions are in fact NOT required by federal law and explain the misunderstandings that landlords either knowingly, or unknowingly, rely on when they evict tenants from federally-subsidized housing.

Section 8 is a rental assistance program that provides rental subsidies for low-income households. The program is generally administered by city and county agencies known as Public Housing Agencies (PHAs). Low-income individuals and families apply to their local PHAs and go through an extensive application process set forth in order to qualify for assistance under Section 8. When an individual or a family is approved to participate in the program, they are deemed “voucher holders.” Voucher holders find a unit they would like to rent and then request that the PHA enter into a contract with the landlord to provide a partial payment of the rent. The PHA then inspects the unit and enters into a Housing Assistance Payment (HAP) contract with the landlord. The Voucher Holder is responsible for the remaining portion of the rent depending on their subsidy amount.

HUD provides PHAs with funds to administer the Section 8 Program; PHAs are in turn required to comply with HUD regulations and requirements in order to continue receiving funding. Despite these statutory mandates, PHAs are afforded a significant amount of discretion and authority. One HUD regulation provides that “the PHA must adopt a written administrative plan” that establishes local policies for administration of HUD programs. For example, a PHA administering Section 8 can define the local criteria for admission into the program and can adopt local policies for denial and termination of assistance.

Once they enter into a HAP contract both the PHA and the private landlord are bound by HUD regulations. One such regulation is the Quality Housing and Work Responsibility Act of 1998 (QHWRA). QHWRA requires landlords to “establish lease provisions for continued assistance in federally assisted housing that allow the owner to terminate the tenancy or assistance” for anyone found to be in possession of an illegal substance. Thus, under QHWRA, landlords must, at all times, retain the right to evict or terminate assistance. The significance of this regulation is the fact that landlords are clearly not required to evict or terminate assistance but rather that they are required to preserve their discretion when such situations arise.

Despite the clear discretion provided for by the statute, many landlords continue to act as if their hands are tied when confronted with an individual believed to be in possession of medical marijuana. As if the statutory language was not already clear enough, in 2011, HUD went the extra mile and released an official statement confirming to landlords that they are NOT required to evict tenants found in possession of marijuana in states that have legalized it for either medical or recreational purposes. The 2011 official statement specifically prohibits landlords from affirmatively permitting possession and use of marijuana but nevertheless instructed 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.” It also instructed landlords currently in HAP contracts to include, in their rental agreements, a similar provision reserving their right to evict tenants.

Being diagnosed with a life threatening disease should no longer result in homelessness. HUD has spoken; PHAs and landlords can no longer argue that they are at risk of losing their federal funding if they do not evict medical marijuana patients. The typical story does not have to have a typical ending. PHAs and landlords must be urged to consider the surrounding circumstances before they evict another patient suffering from a life threatening disease.

Housing Evictions and Marijuana Users: Landlords Don’t Need To Puff, They Can Choose To Pass On Evictions

Your landlord comes to you and says, “I’m terminating your tenancy. You have three days to leave.” You have nowhere to go. Now imagine that the reason you are being forced to move out is because of your medical treatment. When California’s Compassionate Use Act (CSA) was signed into law in 1996, many people living with serious health conditions took a momentary sigh of relief over this newly acquired right to obtain marijuana for medical purposes. The relief was short-lived as many individuals living with the very conditions this Act was supposed to address also found themselves fighting eviction actions. For these individuals, marijuana has become both a medical blessing and a housing burden. My blog series will evaluate the issues faced by individuals living in federally subsidized housing. I will explain the manner in which Landlords and Public Housing Agencies (PHA) choose to evict tenants living in federally subsidized housing despite the fact that they are not required to do so.

I am a 2nd year law student at Santa Clara University School of Law. Prior to law school, I spent three years working for a non-profit organization advocating on behalf of low-income individuals. In my work, I tracked local zoning and local land-use policies to ensure compliance with Federal and State Anti-Discrimination Laws. My work resulted in community benefits agreements amounting to $100,000.00. I currently work another non-profit agency where I assist in representing clients living with mental health disabilities in all aspects of landlord tenant law. This work has given me the necessary experience and perspective to hold government agencies accountable for their wrongdoings and effectively advocate on behalf of low-income individuals. In other words, I know how to fight and I’m fighting on the right side.