A tenant claims to have failed a drug test for employment because of marijuana smoke entering his unit from a neighboring apartment. Do I need to get involved?
Failing a drug test should be the least of everyone’s concern. About 20 years ago, SFAA ran an article detailing the adverse health impacts caused by second-hand smoke. While this write-up focused on the carcinogens released by tobacco products, the author noted that all second-hand smoke, whether it be from tobacco, marijuana, or other substances, is toxic and harmful to humans and especially children.
UCLA Health recently published a succinct summary on the topic of second-hand marijuana smoke: https://www.uclahealth.org/news/article/secondhand-marijuana-smoke-what-are-the-risks-to-your-health. Not surprisingly, long-term exposure to cannabis emissions will adversely impact the non-user’s respiratory and cardiovascular systems as well as increase the risk of cancer. And, as highlighted by this question, secondhand marijuana smoke can cause developmental damage in growing children as THC and other chemicals are being inhaled by the non-users and will appear in their toxic screening.
Thus, like second-hand tobacco smoke, migrating marijuana plumes are a “nuisance” to other building residents. A nuisance is broadly defined as something that is injurious to one’s use and enjoyment of real property. Common examples of a nuisance include loud noise, excessive light, foul odors, and as is the example here, smoke. Housing providers have an obligation to address nuisances, especially those nuisances that are harmful to the health and well-being of other building residents.
Accordingly, this author recommends immediate involvement by the housing provider to stop the migration of second-hand cannabis smoke into the living space of others. Start by meeting with the smoking tenant. Inform them of the problem. If the lease contains a smoking prohibition, advise them that they need to adhere to this covenant. The SFAA lease clearly prohibits smoking for this very reason:
SMOKING: Smoking of any substance is not permitted in the Premises or in any common area of the Building. Tenant shall inform all guests or invitees of this smoking prohibition. Any breach of this provision by Tenant shall be deemed a material breach of the Agreement and may be just cause for terminating the tenancy. Tenant shall promptly notify Owner in writing of any incident where smoke is migrating into the Premises or Building common areas from sources outside of the Premises.
Also consider weather-stripping the smoker’s door and windows, especially if there is not a lease clause prohibiting smoking. Regardless of whether smoking is or is not permitted inside of one’s home, in no instance may this nuisance activity be allowed to persist to the detriment of other building occupants. As such, should your resolution efforts fall short and the smoke continues to invade building common areas or living spaces belonging to others, consult legal counsel to initiate more formal pressure. In sum, this problem needs to be addressed diligently, and the housing provider must certainly become actively involved until the situation is satisfactorily rectified.