Does Legalization Change Storage Policies?
Whoever said that self-storage business was boring? In the last year, more and more questions have been raised as to how the legalization of marijuana in certain states may impact the “USE” provisions of a standard self-storage rental agreement, specifically whether it would now be permissible to use a self-storage rental unit to grow plants, store drugs, or even smoke the “legal” marijuana at the facility. These are all great questions but, as discussed below, the legalization of the drug does not really impact the level of control self-storage operators have over how their rented storage units are used.
There are more than 20 states that now permit the limited growth of marijuana plants and the limited possession and use of the drug. The majority of those states permit this cultivation and possession/use solely for medical reasons and only after approval by a doctor in the state. Accordingly, for a tenant to cultivate the drug in most states, it will require a proper certification from the applicable government agency that has been tasked to oversee the distribution of medical marijuana in the state.
So, can a tenant with such a certification simply be permitted to grow, store, or use the drug on a self-storage property? The answer is no.
As it applies to growing the plants, no self-storage units should be used for growing anything. Recent cases have clarified that the use of storage units should be limited to the storage of personal property (held by an individual or a business) and certainly not a place where plants of any kind are grown. To knowledgeably permit the growing of the plants would not only be a waiver of the rental agreement’s use provision, but it would likely be a violation of the applicable zoning restrictions for the facility as well. Growing plants could be seen as an agricultural act as compared to using the property for the storage or personal property as would be expected.
What about storage of legal amounts of the drug? Just like the restriction to not permit the storage of perishable foods (which are also legal) on the premises, a facility has the right to restrict the use of the facility for storing drugs. This issue came up recently when a facility operator started smelling the odor of marijuana from a storage unit on a particularly hot day. The smell permeated the facility and became a distraction to other tenants. The smell came from drugs that arguably had been legally stored in the premises. That doesn’t mean that their storage should be permitted, especially if their storage can result in a nuisance to other tenants.
Finally, smoking cigarettes is generally restricted at self-storage facilities. Smoking marijuana should be no different. If a facility sets the rules and regulations of what can and cannot happen on their property, their tenants can either choose to stay or leave. If smoking cigarettes (which are legal) is not permitted on the facility premises, a facility can certainly choose to restrict the smoking of marijuana products.
At the end of the day, this is such a new issue that it hasn’t fully been addressed. Should a facility operator who allows the storage of legal marijuana be concerned if the tenant is storing more than is legally permissible? Should a facility operator be concerned if the legal grower is meeting “customers” at the facility to sell some of its products (even if arguably the sale is within the permitted limits)? Generally, since all of these questions have potential criminal implications to the facility operator and property owner, it seems the best answer right now is to NOT permit the growing, storage, possession, or use of marijuana at self-storage facilities, even in those states that permit the use of medical marijuana.