GREAT question, developing area of the law. This is my opinion only, so don't take it as gospel or anything: People have a right of privacy in their homes, which has to be balanced with the right of other persons residing under the same roof to not have the house burn down. My worry and concern would be the extra electricity would create a burden on the house's electrical system that could lead to a hazardous condition.
Arguably if you have rented him a room, you are "excluded" from that space and not liable for what happens in there. Of course that is scant help when the SWAT team is at the door with a battering ram. The issue of whether police can enter without your permission is one I leave to my criminal defense colleagues. Are they interested in two pot plants? Probably not. Does he have a MMJ permit? If so, then arguably this quantity is within the limits.
You could give him a 10-day notice to comply with lease terms or leave; you could make it a 3-day notice to quit for drug nuisance, and not give him the option to comply, but just the option to leave and avoid an unlawful detainer for drug nuisance. Under state law, with a MMJ card, having two plants is not unlawful conduct.
The nut of your issue is whether his right to privacy outweighs your right to not have marijuana, medical or otherwise, being grown in your house.
A recent Supreme Court (WA) decision held that an employee who tested positive on a UA had no standing to claim the MMJ that showed up exempted her from the employer's demand that her UA be clean. She was fired from her job. The Court upheld the employer's decision. The Court said that was a decision within the sound discretion of the employer.
Privacy in one's home is a different issue. I am personally aware of apartment complexes who have all their tenants sign a covenant not to smoke (cigarettes) anywhere on the premises, but when those same tenants fire up a stogie in their own apartment, the management's hands appear to be tied. Can one agree to have conduct within one's personal and private living space regulated? The management does not appear to want to test this in court.
I hope this helps. Elizabeth Powell
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Great analysis of the situation by Ms. Powell.
I recently represented a client who owned a home. My client was renting out the lower floor of their home to a tenant. The tenant was growing marijuana downstairs without my clients knowledge, but my client happened to learn of it. It was not a substantial amount, but it was still marijuana.
I provided a very similar analysis as Ms. Powell has provided. Given the uncertainty and various potential issues that could have arisen (i.e. law enforcement raids, other criminal activity such as burglary, etc...), my client chose to provide written notice to the tenant and advise them that they were terminating the lease for the illegal drug activity. My client did not want to unnecessarily subject themselves to the risks associated with the situations.
The tenant was gone within 24 hours and my client was rid of the potential issues that could have arisen. This was a swift, efficient and cost-effective way to resolve the problem.
This is not a suggestion or legal advice as to what is best to do in your situation. Each legal matter is unique and the specific facts of your situation might result in a different outcome.
Legal disclaimer: The answer provided: A) is for informational purposes only, B) is not intended to constitute legal advice, C) should not be relied upon in lieu of consultation with an attorney, and, D) does not establish an attorney client relationship. The answer may be different if all of the facts were known.