On December 29, 2014, Benjamin Metcalf, HUD Deputy Assistant Secretary for Multifamily Assisted Properties, issued a memo to HUD Multifamily directors and contract administrators clarifying the impact of medical marijuana use on the admissions process and ongoing occupancy of Multifamily assisted properties located in states that have decriminalized marijuana. The Metcalf memo echoes similar guidance issued by Sandra Henriquez, former Assistant Secretary for Public and Indian Housing, in 2011 to HUD field offices and public housing agencies regarding the Public Housing and Housing Choice Voucher programs.

Essentially, the guidance confirms that notwithstanding actions by states to decriminalize marijuana or permit the use of medical marijuana, under the federal Controlled Substances Act marijuana is illegal. As such, marijuana users cannot be admitted to federally assisted housing. Upon occupancy, the tenant lease provisions shall allow the owner the right to terminate tenancy for use of a controlled substance, including marijuana. The HUD guidance indicates owners of federally assisted housing have some discretion in addressing the use of marijuana following occupancy.

Pursuant to Section 577 of the Quality Housing and Work Responsibility Act of 1998, an owner of public housing or federally assisted housing may consider whether the use of the controlled substance “interfere[s] with the health, safety, or right to peaceful enjoyment of the premises by other residents.” As the Henriquez memo points out, a decision regarding termination of tenancy can be made on a case by case basis and in situations where termination is deemed necessary, can decide whether to terminate the offending resident or the entire household. All decisions must be made in accordance with a written policy established by the public housing agency or multifamily owner.