As more states legalize medical and recreational marijuana use, it’s getting harder for landlords to stop tenants from smoking pot. Photo credit: Torben Hansen/Flickr
I’m a bit floored. There are all kinds of obscure laws — or would-be laws — pertaining to real estate that can throw practitioners for a loop. But three points of discussion came up during Wednesday’s sessions at the REALTOR® Party Convention & Trade Expo in Washington, D.C., that made my draw drop.
1. Your Website Discriminates Against People With Disabilities
You could make every physical accommodation for people with disabilities: ramps and elevators in your office, barrier-free entrances to homes you have listed, etc. And yet, despite all of that, you could still run into a legal problem — because your website isn’t optimized for use by people with hearing or visual impairments.
More and more businesses are getting mired in lawsuits because their online videos don’t have closed captioning for the deaf, or their websites don’t use software that can turn text into audio for the blind. Though there are no specific regulations on this, said Glen D. Kimball and Martin J. McAndrew, partners at law firm O’Connor Kimball LLP, they expect that the law will reflect the need for these online components in the near future.
“Laws governing accommodation for the disabled are always expanding,” McAndrew said. “Now we’re going beyond talking about opening physical doors for people with disabilities — it’s about providing access to information. The courts are still grappling with this physical versus non-physical issue.”
He cited two recent lawsuits brought against major players in the online space. The National Association for the Deaf sued Netflix in 2010, saying that the video-streaming website is a “place of public accommodation” and because it didn’t caption its video content, it wasn’t in compliance with the Americans With Disabilities Act. Netflix eventually agreed to caption 100 percent of its content by this year.
In 2011, the Greater Los Angeles Agency on Deafness sued CNN for similar reasons, saying that though the news organization provides closed captioning with its television broadcasts, it should also provide it with the short video clips it posts to its website, CNN.com. CNN has fought the lawsuit, saying that closed captioning causes delays and inaccuracies. The case is set to go before the California Supreme Court later this year.
“We expect to see some type of legislation come down definitively on this topic in the next several years,” McAndrew said. “And my sense is that it will become law. Real estate professionals need to start thinking now about how they bring their own websites into compliance.”
2. Landlords May Have to Let Tenants Smoke Pot
With more states legalizing medical and recreational marijuana, it’s becoming more difficult for landlords to take action against tenants who smoke pot on the property.
“There’s no constitutional right to smoke pot,” Kimball said, “but if you want to stop someone from smoking pot, you may need to reasonably accommodate medical marijuana.”
General attitudes toward marijuana are changing, with 21 states allowing medical marijuana use and two states — Colorado and Washington — legalizing recreational pot smoking this year. “And law enforcement are going after small possession cases less and less, so it’s going to be hard to get them to take action against a tenant who’s smoking pot,” Kimball said.
For now, landlords can still put rules on controlled substances in leases to manage the use of pot on the property, but the language should be very specific. Otherwise, tenants could claim a need for medical marijuana to skirt the rules.
“You can’t rely on a ‘no smoking’ policy to cover pot, because ‘no smoking’ connotes tobacco — and pot is not tobacco,” Kimball said.
Also, specific language against growing marijuana should be put in the lease. Even if a landlord says that smoking pot is not allowed, tenants who need medical marijuana could still claim that growing it on the property is not in violation of the lease agreement if it wasn’t specifically stated by the landlord.
“Pot is still considered a controlled substance by the federal government, but until it makes up its mind about medical marijuana, enforcement is going to be an issue,” Kimball said.
3. Tax Reform Could Neuter MID
John Buckley, a former chief tax counsel of the House Ways & Means Committee, cautioned members of NAR’s Federal Taxation Committee that the mortgage interest deduction (MID) could be in serious trouble thanks to a tax reform proposal from Rep. David Camp (R-Mich.).
The warning may come as a surprise to many REALTORS®. After all, Camp hasn’t directly proposed significant modifications to the mortgage interest deduction itself, aside from halving the cap to $500,000. But Buckley said the proposal would, nonetheless, cause serious changes to the way the MID functions in the lives of most Americans.
“Its just an attempt to hide the real impact,” Buckley said of Camp’s proposal. “Essentially, I think it is tantamount to removing these deductions, all in the context of a bill that pretends not to touch the mortgage interest deduction,” Buckley said.
Buckley explained why he’s worried: When Camp proposes a significant increase in the standard deduction combined with the repeal of deductions for state and local income taxes, he would be putting a large majority of the population in the position where it’s more beneficial to choose the standard deduction, rather than itemizing their tax deductions. When fewer people itemize, Buckley says, itemized deductions such as the MID are “wasted.” Read the full story on REALTOR® Magazine Online.
REALTOR® Magazine multimedia Web producer Meg White contributed to this report.