New Jersey Landlords Beware: Is your Building Protected when Marijuana becomes Legal?

Tenants who smoke in their apartments and in the common areas of their apartment buildings presents a major problem for landlords of multiple dwelling buildings. Inevitably, the smoke from one apartment will leak into neighboring apartments, leading to complaints and possible move-outs from non-smoking tenants, who generally find the smell of cigarette smoke to be abhorrent.  This problem has been largely vitiated, however, as the use of cigarettes has declined substantially during last 30 years.  Unfortunately, the New Jersey legislature will soon create a new problem since it has introduced new legislation to legalize marijuana.  Unlike the other states that have enacted the similarly misguided legislation to legalize marijuana during the last five years, New Jersey has the unique problem of having a significant portion of its population living in multiple dwellings.  Marijuana smoke, like tobacco smoke, causes a substantial annoyance to those who do not choose to use these harmful products.

Historically, the legislature has allowed for the eviction of a tenant for the mere use of marijuana or any illicit drugs in the residential dwelling.  N.J.S.A. 2A:18-61.1(n) provides for the eviction of a tenant who “hasbeenconvictedoforpleadedguiltyto… anactwhich… wouldconstituteanoffenseundertheComprehensive DrugReformActof1987…involvingtheuse,possession,manufacture,dispensingor distributionofacontrolleddangeroussubstance.”  Similarly, N.J.S.A. 2A:18-61.1(p) allows for evictions for the same offense, even without a conviction, provided that the offense can be proven by the preponderance of evidence in the landlord tenant action.

However, when marijuana becomes legal, the curative provisions of N.J.S.A 2A:18-61.1, which have been designed, in part, to avoid the problem caused by tenants who use marijuana, will no longer be actionable.  Put simply, a landlord cannot evict a tenant for using a drug, which is no longer illegal.  Therefore, landlords must immediately consider writing new lease provisions in order to avoid these problems before they happen.

Under N.J.S.A. 2A:18-61.1(e), a landlord can evict a tenant for violating a lease covenant.  A provision in a lease, setting forth that the tenant may not smoke in the apartment or in the common areas is enforceable.  However, in cases where the lease provision does not exist in the original lease, but rather, it is inserted in a subsequent lease renewal, the landlord may be exposed to an objection from a tenant, who may claim that the proposed lease change is unreasonable.  This defense may be more effective in cases where the proposed lease change seeks to preclude an activity that was not only previously allowed, but also engaged in by the tenant.  Accordingly, while we cannot guarantee that a proposed lease change will not be opposed, we suggest that these lease changes be inserted as soon as possible for new leases and renewals.  Once the new legislation, allowing for the use of marijuana, is signed into law, the landlord may be subject to more challenges upon lease renewals from tenants.

Finally, we note that in New Jersey, all evictions, other than those based on non-payment of rent require the service of certain statutory pre-suit Notices prior to the commencement of the eviction action.  The timing and the content of the Notices will vary greatly depending on the allegations set forth.  We do not recommend that Landlords attempt to prepare these Notices on their own.  For assistance with in preparing new leases or for the required Notices, please feel free to contact our office.