By: Stephen A. Harlan
Associate Attorney
Desmond, Rand & Guerard, P.A.

With adult cannabis use legal in Maine, rental owners now have another issue they must consider: will they allow cannabis use on their rental property and what is does the law say about restricting such use?

Under Maine law, individuals may use, possess, and transport up to 2.5 ounces of cannabis so long as they are 21 years of age. Such individuals may also possess, cultivate or transport at any one time up to 3 mature cannabis plants, 12 immature cannabis plants, or an unlimited number of seedlings. Medical cannabis use has different rules.

Concerns over cannabis and rental property owners’ ability to restrict such use were debated. Around the time cannabis was legalized, H.P. 579 was introduced into the 128th Legislature that sought to provide express provisions stating that landlords could restrict cannabis use, possession, and cultivation. However, the bill was withdrawn and never became law. The Marijuana Legalization Act ultimately stated that use on private property must be explicitly permitted to allow consumption of cannabis or cannabis product on the property by the owner. However, for users, the advice from the state is somewhat conflicting because Maine’s Office of Cannabis Policy notes that landlords do retain the power to ban the use and possession of cannabis on their properties. Therefore, a landlord looking to the law may feel that as they have not provided explicit authority to use cannabis on their property such use is prohibited while a tenant might look to the Office of Cannabis Policy’s statement and feel that because such is not expressly prohibited, they can use cannabis products. Then, there is the catch of medical cannabis use.

The catch is that medical cannabis use cannot be banned entirely. Maine’s Medical Use of Cannabis Act forbids the denial of cannabis use by persons authorized to use or possess cannabis under that Act by landlords unless the landlord would be placed in position where they are violating federal law or placed at risk of losing a federal contract or funding. Landlords may, however, restrict administration or cultivation on the premises where administration or cultivation would be inconsistent with the general use of that premises, and landlords may prohibit smoking of cannabis for medical purposes on the premises where the owner also prohibits all smoking on the premises and posts notice to that effect. The law is unclear as to whether a landlord can request verification of medical cannabis use authorization from a tenant claiming such ability.

For landlords, the best option is to make it clear in the lease that adult recreational cannabis use is prohibited if that is what they desire, or to explicitly state any approval of such use and any restrictions on such use. Having a clear policy that all parties to the lease can see, read, and understand, will go a long way to ensuring that both the landlord and the tenant are on the same page and understand their rights and obligations under the lease.

Attorney Harlan is part of Desmond, Rand & Guerard, P.A.’s general business/LLC formation, real estate/settlement & closing, landlord/tenant, and personal injury/civil litigation practice groups. Prior to joining the firm, Attorney Harlan began his legal career at The Law Offices of Joe Bornstein, and before attending the University of Maine School of Law, Attorney Harlan served in the United States Navy as a P-3 Flight Engineer and Chief Petty Officer.