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.