Should Landlords Ban Vaping in Their Rental Units?

By Kimberly Rau, MassLandlords, Inc.

Lots of rentals in Massachusetts ban smoking of any kind. In 2016, when marijuana was legalized for recreational use in Massachusetts, landlords had to decide whether they could, or should, control its consumption in their rentals. While banning smoking may seem like a no-brainer for some landlords, other options are not as straightforward. Vape pens, also called vaporizers, are much harder for landlords to effectively ban. And perhaps you shouldn’t try.

Vape pens, such as the one shown here, may be used with cartridges that contain nicotine, THC or CBD. Should you allow tenants to use them in your rentals? (Image License: Elsa Olofsson for Unsplash)

In this article, we’ll compare smoking cannabis and tobacco to vaping, and discuss why some people may not want to consider edibles as an alternative to smoking.

Nicotine vs. THC vs. CBD: A Quick Overview

Nicotine is a familiar drug. It’s the main psychoactive ingredient in cigarettes. But many people may be unfamiliar with the different compounds in marijuana, or be unaware that smoking certain parts of marijuana may not get you high at all.

When people talk about using marijuana, they are usually talking about consuming THC, CBD or both. Both chemicals are found in cannabis plants, but have different effects and affect different brain receptors.

THC (tetrahydrocannabinol) is the primary psychoactive chemical in marijuana. When people talk about getting high or being stoned, it is because they have consumed THC. THC can be consumed by smoking, through edibles or tinctures, or through the skin as a lotion or cream.

CBD (cannabidiol) is not psychoactive. It is often isolated and sold on its own. People use it to treat pain and some other medical issues without consuming THC and getting high. It may be smoked, or consumed in the same alternative ways that THC may be used.

We have published other articles about weed consumption, including one directed at tenants who were looking to understand what the law said about marijuana in rentals.

Why Landlords May Ban Smoking Weed as Well as Tobacco in Rentals

Plenty of landlords do not allow tobacco smoking in their rentals, and with good reason. Smoking produces ionized particles that cling to clothing and other fabrics (including the carpets), as well as walls and floors. Cigarette smell is very hard to remove, as are the yellow stains and residue associated with nicotine.

There are many ways to smoke cannabis. There are joints and blunts, pipes and bowls, spliffs, dab rigs and bongs, and probably a bunch of other vehicles for smoking that we’re unaware of. Unfortunately, smoking weed creates a powerful odor, and may affect others not directly smoking (contact highs are real).

Residue from marijuana smoke does not typically damage housing units the way nicotine residue does. The reason for this is primarily that, while marijuana smoke produces particles just like tobacco smoke does, cannabis smokers typically do not smoke at the volume that cigarette smokers do. Some tobacco users smoke a pack of cigarettes a day, but who smokes 20 joints in one day? Nicotine acts as a stimulant, encouraging users to smoke more and more. Cannabis does not encourage chain smoking in the same manner.

That said, the smell of marijuana can still linger. If you have a heavy pot smoker, you may still find yourself with quite the cleaning project upon move-out. Damages beyond reasonable wear and tear can be deducted from the security deposit, but even with that protection, you may not want to deal with the hassle.

If you operate a multi-family unit, you may also want to ban smoking of any kind out of courtesy to other tenants. Our no-smoking addendum can be added to your lease and prohibits smoking cigars, cigarettes or other forms of tobacco, as well as marijuana.

Vaping: An Alternative to Smoking

Those who do not wish to light up and smoke marijuana or tobacco may choose to vape it instead. And in terms of property damage, vaping is a much cleaner (at least for the furniture, less so for the lungs) way to ingest either substance.

A vape pen is a device that uses vape juice to deliver nicotine or weed in vaporized form. A cartridge with a liquid solvent, often called vape juice, acts as a carrier for nicotine or weed. The solvents are typically made up of vegetable glycerin or propylene glycol. This vapor is inhaled rather than smoked.

When it comes to cannabis use, vaping produces stronger effects compared to smoking marijuana, particularly for infrequent users. Therefore, users will often spend less time vaping than they would smoking.

Straight marijuana may also be put into dry herb pens, where it is then superheated and inhaled without lighting it on fire. This method of delivery also produces a smokeless experience. These pens could theoretically also be used for tobacco, but this method does not seem to be very popular.

How Vaping Differs from Smoking

Vaping is different from smoking in several ways. First, vaping doesn’t utilize any kind of fire or combustion to deliver tobacco or cannabis. Instead, an element within the vape pen heats the liquid in the cartridge until it can be vaporized.

Vaporizers sometimes produce a smell when they are used, but the vapor that is expelled is much less dense than smoke. Therefore, the smell does not linger in the air the way it does when someone is smoking.

This means that people outside the immediate area are unlikely to know whether anyone is smoking. To other residents, particularly those sensitive to certain odors, this will almost certainly be preferable to smoke smell. Also, while vaping may leave a slight residue on immediate surfaces, it is unlikely to seep into walls or stain the way nicotine does.

Should Landlords Ban Vaping in Their Rentals?

What does this information mean for you as a landlord?

Primarily, it means that if you try to enforce a “no vaping” rule, you are going to have a very difficult time proving your tenants broke the rules. This means evicting for that particular lease violation is going to be hard to do. If you are strictly anti-smoking, allowing vaping gives your smoking tenants an option to consume nicotine or marijuana without violating your rules, and allows you to protect your property.

In the past, there were reports of vape pens exploding, sometimes causing grievous personal injury. Most vape pen-related fires and explosions can be prevented by using the device according to the manufacturer’s specifications and taking proper care not to expose the unit or batteries to extreme temperatures. Remember, these are electronic devices that should be charged in a safe manner (on a hard, flat surface, where they are unlikely to overheat). To ensure the device meets safety standards, only purchase UL-listed devices.

Many leases have no-smoking addendums, prohibiting smoking cigarettes on the premises. (Image License: Unsplash)

Gwendolyn Property Management v. Goodwin: A Cautionary Legal Tale

In 2021, Gwendolyn Property Management took two of its tenants, Lisa Goodwin and Timothy Johnson, to court. The company was seeking possession of the unit after the tenants allegedly violated the lease by smoking on the premises.

Goodwin and Johnson, who had lived at the Webster property for 18 years, both admitted that they had smoked on the property in the past, but had switched to vaping. The lease they signed in 2019 included our no-smoking addendum, which has very careful definitions of what constitutes smoking. (“Smoking shall include the inhaling, exhaling, breathing, carrying, or possession of any lighted cigarette, cigar, pipe, other product containing any amount of tobacco, marijuana, or other substance.”)

In April 2021, the tenants were served a notice to quit for violating the lease and smoking on the property. Rich Merlino, the property manager, had visited the property in July 2020 and smelled a strong cigarette odor coming from the third floor, where the defendants lived.

Haley Ruggieri, a downstairs tenant, testified that she had smelled smoke and saw the defendants smoking starting in early 2020, noting that the smoke was cigarette smoke, not vapor from a vape pen. She also stated she saw cigarette butts around the defendants’ vehicles. Other witnesses also stated they had smelled a strong odor of cigarettes coming from the defendants’ apartment.

However, the property management company lost its case, because the judge apparently did not understand the difference between smoking cigarettes and vaping.

“The Court does not credit Ms. Rugierri’s testimony that she can distinguish the difference between the smell of smoke with respect to vaping compared to smoking cigarettes,” the decision read. “Additionally, the Court does not credit Ms. Rugierri’s testimony that she can distinguish the type of smoke from vaping compared to smoking cigarettes.”

This is patently false. Discharge from a vape pen looks nothing like cigarette smoke, and the two do not smell the same, even if the user uses tobacco flavored vape juice, as one of the defendants claimed. Anyone who has witnessed both being used would likely say the same.

Regardless, judgment was issued in favor of the defendants. This is concerning, because it puts landlords, and our forms, in jeopardy. The judge in this case discredited multiple witnesses’ testimony due to apparent ignorance on the differences between smoking and vaping. Though the plaintiff did not appeal this particular case, if any of our landlords find themselves in a similar situation with a similar outcome, we believe an appeal would be in order.

Can’t I Just Ask People to Use Edibles Instead of Vaping Marijuana?

Edibles are foods that contain marijuana extracts, and they come in many forms, from gummies and other candies to baked goods and drinks. Once outside the packaging, there’s often no way to tell the difference between a marijuana edible and its mainstream counterpart.

This means that saying “no edibles” because you don’t like the idea of your tenants using marijuana is even more of a losing battle than banning vaping. It’s also unlawful. The good news is, edibles don’t damage your rental (even if your tenants bake their own brownies, it’s no more a risk than baking regular desserts), or infringe on others’ enjoyment of the property.

So why not insist your renters keep their marijuana consumption limited to edibles? The simple answer is, not everyone can tolerate edibles. People who get medical relief or enjoyment from smoking or vaping cannabis may find that edibles make them paranoid or anxious. Edibles in the right amounts shouldn’t make someone any more paranoid than smoking marijuana would, but it’s easy to overdo it. Why?

THC may not be evenly distributed throughout an edible, making dosing less exact. The effects of edibles also take longer to kick in than smoking or vaping, as you are consuming food, not inhaling smoke or vapor. This can lead to over consumption, particularly among new users who may not know how long to wait before determining whether they need to consume additional product. For these reasons, some users will not be able to substitute for vaping or smoking.

When You May Need to Say, “No Marijuana at All”

There is one situation when you will need to tell your renters that any use of marijuana is prohibited in your rentals. That is when your renters take part in any federal housing programs, or if your unit is part of a federal housing program.

As of this article’s publication, cannabis was still illegal on a federal level. That means that marijuana use, even for medicinal purposes, is prohibited in federally subsidized housing. Doing so can get your renter kicked out of the program. If your unit is part of a federally subsidized housing program, such as Section 8, you could be barred from participating if you are found to be in violation of the law.

This is something that activists are trying to change, but right now, cannabis is not allowed in federally subsidized units.

This means you must tell your renters they cannot consume weed in the rental. Will you be able to catch them and stop them if they vape or consume edibles? Probably not. Do you still need to tell them it’s not allowed? Yes.

There is one exception. That is for CBD products derived from hemp with less than 0.3% THC content. As of 2018, these products are legal on the federal level.

Conclusion: Set Expectations, but Be Realistic

If you have a Section 8 property or similar, you will need to be clear that marijuana use is not allowed. Remind your tenants that their voucher is also at risk if they violate federal law. But other situations require setting realistic expectations for tenant behavior.

You may not want people smoking on your property, and that’s completely understandable, especially if you have a multi-family unit where others may be affected by the smoke. However, if your issue lies with cannabis use in general, you may have trouble banning other forms of consumption. Given the health concerns surrounding vaping, we can’t suggest you encourage your tenants to vape rather than smoke. But when it comes to damaging the rental, vaping is arguably the lesser of two evils when compared with smoking. Allowing it may keep your tenants from violating the “no smoking” clause in your lease; banning it is going to be hard to enforce. Prohibiting edibles is illegal, but edibles consumption is unlikely to harm your rental.

If your tenants begin causing damage or otherwise violating the lease because of their cannabis use, proceed accordingly as you would for any other lease violation. As always, run any decisions you make by your attorney before acting.