Sued for Cannabis Odor: Now What?

The movement to legalize marijuana has gained significant ground in the US over the past decade, with more than half the nation now allowing cannabis for either medicinal or adult use. If that means anything, it’s that there’s a heck of a lot of people out there taking full advantage of their legal right to partake in a plant that’s historically known to cause trouble with the law. Unfortunately, it’s not exactly live-and-let-live yet in legal states. Although fewer people are going to prison for cannabis, many are being dragged to court by olfactory-sensitive Americans over odors.

The Washington, DC-based Josefa Ippolito-Shepherd is leading the charge. She recently filed a lawsuit against her neighbor, Mr. Thomas Cackett, a registered medical marijuana patient, complaining that the marijuana smoke from his apartment was wafting into her abode, causing her to suffer a wealth of health issues. Although Judge Ebony Scott didn’t offer the plaintiff any damages, she did, however, find that the smell of marijuana was a nuisance. The judge said that marijuana is legal, but Cackett “doesn’t possess a license to disrupt the full use and enjoyment of one’s land.”

The Outcome is a Real Buzzkill

Cackett must now treat whatever ails him from at least 25 feet away from Ippolito-Shepherd’s residence.

The court’s decision is, of course, being praised by a slew of anti-cannabis kindred spirits who have, too, complained at one time or another about the smell of marijuana from a neighbor infiltrating their property. “From someone living in a condo surrounded by short-term rental units, I agree with the ruling,” Philip of Garden City Beach, South Carolina, said. “You can do whatever you want in your place until it adversely affects your neighbor. There are ways to get that medicinal effect without the smell causing problems for neighbors. We smell it all the time and it can make us sick and it triggers my wife’s asthma.” Plenty of others echoed that sentiment, arguing that, sure, it’s live and let live—but not if I can smell y’all living.

Cannabis users naturally disagree with the ruling. They argue that there are plenty of unpleasant odors that often waft into other people’s apartments that no judge would dare ever rule against. Arvie, a cannabis user from Maryland, contends that some food odors can be pretty pungent as well, so why single out marijuana smoke? “Must I cease and desist if my neighbor dislikes the fragrance of Old Bay?” he asks. “There’s really little difference in comparison.”

Right or wrong, it stands to reason that as marijuana legalization becomes more widespread in the US, more cannabis users could find themselves in court over pot odors, just the same as Cackett. They could lose the fight too and man, well, that really stinks. So, are there any preemptive strikes the average cannabis consumer can take to keep from being slapped with a lawsuit?

California-based real estate attorney Brenda Linder tells Cannabis Now that she wouldn’t worry about having to face the courts about complaints over the smell of marijuana, as further lawsuits will likely be rare. It’s more probable, she says, that states, local municipalities and property owners are going to push back harder against pot smoke. That sort of backlash against the bud is already happening. The Fresno City Council, for example, passed a local regulation in 2021 banning smoking “anything” inside of a multi-unit housing building and in any common areas. It was an obvious jab at cannabis consumers. “I think that this was a bit of over-reach and duplicative since (under current state law) a landlord may include such restrictions in their leases,” Linder said.

Cannabis Smoke Restricted for Years

Unfortunately, tenants have no right to smoke in rental properties and no-smoking restrictions have been prevalent in leasing agreements for decades. Because marijuana remains a Schedule I controlled substance in the eyes of the federal government, smoke-free and drug-free policies are common to see in rental contracts. Even in legal states, property owners have the right to include this clause in their rental agreements. Many still do. California, where cannabis has been legal in some capacity since 1996, is no exception. “The majority of rental agreements/leases in California for years have contained restrictions against smoking anything in the rental unit/home and common areas,” Linder said, adding that the no smoking policy is a standard clause. That clause specifically mentions vaping and cannabis, along with cigarettes,” she added.

In the case involving Cackett, he told the court that he smokes outside on the patio to keep from violating the no-smoking clause in his lease. He also testified that his landlord allowed him to smoke inside during bad weather. Ippolito-Shepherd sent hundreds of emails to Cackett asking him to stop smoking. Leaning on private nuisance laws is what helped Ippolito-Shepherd gain a victory in her case. It’s a move we could see unhappy neighbors embracing in more jurisdictions.

Using California again as an example, state law defines a nuisance as “anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.” This law is typically used as a defense against drug houses, but it could be used by anyone wanting to pursue a lawsuit against a neighbor over nuisance cannabis odors. They would first have to prove “injurious to health,” Linder said, but the “effects from cannabis smoke through a shared wall is not a stretch,” she added.

The good news? Linder doesn’t think we’ll see a barrage of these lawsuits where neighbors are sued for cannabis odor filling up court dockets. The bad news is that’s likely because more states and property owners are going to tighten up no-smoking restrictions. “Since tenants will generally be contractually denied from exercising that activity within a rented space, the facts constituting a cause of action for a private nuisance suit will be greatly diminished,” she said. Any tenant that goes against these policies could ultimately find themselves on the street. “With enough complaints, the landlord will issue a “notice to cure,” and if not corrected, then the landlord will evict. Since that is what is generally being done in California, I doubt there has been much use for, or application of, a civil complaint for a private nuisance claim. So, I doubt this will be some sort of rush to the courthouse.”

If Linder has any advice for cannabis users wanting to avoid lawsuits or evictions, it’s simple. “Don’t be a renter or purchase a home that has a shared wall,” she said.