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January 21, 2015: HUD Clarifies Owners' Discretion on Marijuana Use in Multifamily Assisted Properties

HUD’s Office of Multifamily Housing Programs recently issued a Memorandum entitled "Use of Marijuana in Multifamily Assisted Properties," reiterating the legal obligations that owners of federally assisted housing have regarding tenant use of marijuana. The memo clarifies that owners retain the discretion whether to evict current tenants for using marijuana, taking note of the context that some states have legalized the use of marijuana for medical purposes and others have begun to legalize marijuana more broadly.

In 2011, HUD issued similar guidance with respect only to medical use of marijuana. HUD reminds owners, however, that the use of marijuana is illegal under the federal Controlled Substances Act, and therefore illegal under the Quality Housing and Work Responsibility Act of 1998 (QHWRA). Under QHWRA, owners must deny admission to assisted housing for any household with a member that the owner determines to be using a controlled substance, such as marijuana. By contrast, "QHWRA provides owners with the discretion to determine, on a case-by-case basis, when it is appropriate to terminate the tenancy of the household."

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