by Micha on 21/11/2018 | Legal & Politics

Could I lose my flat if I grow cannabis there?

Tenancy law The question of whether you could lose your flat by growing cannabis within your own four walls concerns many amateur gardeners who have a few illegal sub-tenants stashed away in a well-disguised cupboard.

In the Netherlands, we can answer this question with a definitive “Yes”, because in this former grower’s paradise, you will lose not only your flat but also your good reputation in the neighbourhood. Anyone who dares to cobble together a growbox inside their home and fill it with cannabis plants will be evicted in the event of an unplanned visit. In addition, in some parts of the Netherlands the forfeited home will be labelled by the authorities with visible signs such as “Another one down”, “Cannabis plants uncovered” or “Project cannabis tent”. This is intended to stigmatise the home grower as a criminal in the eyes of their acquaintances and neighbours, on top of their punishment in court, and to encourage the general public to report growers.

Nowadays in the Netherlands, even the smallest home growing system is treated in the same way as a professional nursery, and grow shops manage to survive by being disguised as flower shops. Growing a small number of cannabis plants on one’s balcony is tolerated, but only as long as this does not upset the neighbours or anyone else. No penalties are incurred for these small outdoor plantations.

As the coffee shop system in the Netherlands actually contravenes the country’s narcotics law, known as the Opium Act, the entire cannabis infrastructure is based on the principle of turning a blind eye. However, this theoretically illegal practice (still) only applies for licensed shops, whereas the repression of cannabis growers has increased in intensity in recent years.

Growers in Spain are in a better position

The situation is rather different in Spain. Here, the drug legislation actually protects small home growers from criminal prosecution. Shortly after the end of the Franco dictatorship, a law was passed in Spain that allowed cultivation and consumption of any drugs, provided these were not for sale and never left the grower’s home.

Incidentally, this same law provides the not entirely undisputed basis for the Cannabis Social Clubs that are active across the country. These clubs argue that cultivation is carried out on private club premises, the harvest is not sold, and it is consumed in a private area – making it 100% legal. Although you are not actually entitled to cultivate small numbers of cannabis plants, anyone who does so in private and merely for their own consumption does not need to fear any consequences under either criminal law or tenancy law.

In Germany, the jurisprudence is inconsistent.

In Germany there are four judgements that deal with “cannabis cultivation” as justification for terminating a lease. The basic tendency seems to be that a lease can be terminated if the cultivation volume exceeds the amount for private consumption. However, in Germany there is no exact definition of a permissible number of plants or even of a “small number” of cannabis plants. This varies from case to case.

For example, in 2003 a grower who had 14 plants on his balcony had the termination of his lease legally upheld by the Ravensburg District Court. In another case in Cologne, termination on the grounds of cultivating a few cannabis plants on the balcony was rejected. The number of plants was so low that even the criminal proceedings against the accused that led to the rental dispute were dropped in favour of a small fine.

In 2013, the same court ruled that nine plants on the balcony, plus an unproven suspicion of dealing, did not justify terminating the lease. Here, too, the preceding criminal case was dropped and replaced with a fine.

In 2016, a man in Karlsruhe had his lease terminated because, in the words of the court, he was “growing a sizeable quantity of cannabis” in the cellar and in his flat. The tenant stated during the criminal proceedings that he was growing all of it for medical reasons. As the accused failed to provide any prescription before the date of the conviction, the court accepted the landlord’s arguments in relation to the flat and upheld the termination without notice. The Karlsruhe District Court confirmed its ruling as follows:

“[…] the undisputed facts of the case show that the accused used parts of the rental premises to commit criminal acts in a premeditated and planned manner and on a scale that is well beyond being able to be dismissed as a trivial matter.”

The justification of the verdict implies that, if evidence had been provided that the crop was being grown on medical grounds, the court might have been the latest of the four cases mentioned here to act more leniently:

“The cultivation and consumption of narcotics in the apartment was not justified by the fact that the consumption was necessary on medical grounds. Despite the court’s instruction dated 16/11/2016, the accused did not provide any substantiation, nor provide any doctor’s prescription or confirmation that he consumed cannabis based on an explicit medical recommendation. Rather, the accused stated at the aural proceedings on 11/01/2017 that he would go to his doctor after the hearing and get the relevant confirmation issued for the first time.”

Patients who grow cannabis based on what the law formally calls a justified need must have the cannabis treatment and the necessity for it confirmed and documented in a legal form by at least one doctor. If you cannot provide the necessary documents to the court, then you will not be taken seriously as a cannabis patient. Cases like this also reinforce social prejudice against so-called fake patients who pretend to use it for medicinal purposes to avoid the criminal consequences, and as in this case the rental consequences, of their actions.

What is the situation in other countries?

Under the legislation of most countries, you will lose the tenancy of rented accommodation if you use it to commit criminal acts. As growing cannabis is forbidden almost everywhere in the world, you can therefore lose your flat almost everywhere in the world. However, it is not just in Germany that many landlords refrain from further punishment of the tenant, as long as the cultivation has not caused any damage to the property. Whether you can say goodbye to your flat as well as your harvest if you are caught depends not just on the law but also on the personal attitude of the landlord in many cases. If the landlord has a problem with cannabis, then the tenant will usually have a problem too.

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