Q: I would like to completely prohibit smoking inside my apartment units, but allow smoking in common areas. Am I allowed to restrict some areas, but not others?
A: Yes, you may prohibit smoking inside of the apartments while allowing smoking in specified common areas. You must include a provision in the rental agreement that specifies the areas on the property where smoking is prohibited. Be specific about the areas where your tenant cannot smoke in your rental agreement so a tenant does not try to argue that the rental agreement was not clear as to where they can and cannot smoke cigarettes. Additionally, any rental agreement or lease entered into after January 1, 2012 that prohibits smoking must designate the specific areas where smoking is prohibited.
Q: I have a tenant that signed a lease without a non-smoking provision. The lease has since expired and converted to a month to month tenancy. Can I prohibit him from smoking cigarettes in the unit?
A: Yes, but you must give the tenant notice prior to the ban becoming effective. To prohibit a tenant(s) from smoking in the unit you must provide your tenant with a 30-day notice of change in terms of tenancy. This notice must be in writing and properly served on the tenant. If your tenant is in a lease, then both parties must agree to this new term or you will have to wait until the expiration of the lease to change the smoking provision.
Q: I am a landlord that does not allow smoking in any of my rental units. Since marijuana became legal in California, I am worried that my tenants will start smoking marijuana in my rental units. Does my non-smoking provision in my lease include marijuana smoke?
A: No, if your lease provision does not include the specific type of smoke, then it will not apply to marijuana smoke. You should adjust your new leases to prohibit marijuana, tobacco, and any other smoke producing products on the premises. If you have tenants that are on month-to-month rental agreements, then you will need to provide a 30 days’ notice of change in terms of tenancy to prohibit marijuana smoke. If your tenant is in a lease, then both parties must agree to this new term or you will have to wait until the expiration of the lease to change the smoking provision to include marijuana smoke.
Q: I have a new tenant in a six-month lease. In the lease there is a provision that prohibits all types of smoking in his unit (cigarettes, vape, hookah, marijuana, etc.). His neighbors are complaining that the tenant is vaping on the balcony of his unit and the smell is coming into their unit. When I confronted the tenant about his vaping, he told me he has a right to vape/smoke in his own unit and that I am interfering with his right to privacy. Is he correct?
A: No, there is no legal right to smoke and restricting smoking does not interfere with the tenant’s privacy or use and enjoyment of the premises. If the tenant refuses to stop smoking, then you may give him a 3 Day Notice to Perform Covenant or Quit for breaking the non-smoking covenant of your lease.
Q: I own an apartment complex that has a common pool and barbeque area. My tenants are complaining that they should be allowed to smoke in designated smoking areas. All my rental agreements state that smoking is not allowed inside individual apartments or in any of the common areas. Do I need to provide my tenants with a designated smoking area?
A: A complete ban on smoking at your apartment complex is valid. California law allows you to restrict tenants from smoking in any interior or exterior area, including individual apartments and all common areas. Thus, you do not need to provide a designated smoking area for your tenants and may restrict smoking anywhere on the property.
NOTE: In previous columns, we attempted to answer questions on how AB 1482, the Tenant Protection Act of 2019, would be applied. Unfortunately, some confusion has arisen on how to determine the CPI in order to calculate the annual allowable rent increases.
Pursuant to the revised Civil Code Section 1947.12(g)(2), the CPI or the “Percentage change in the cost of living” means “the percentage change from April 1 of the prior year to April 1 of the current year in the regional Consumer Price Index for the region where the residential real property is located, as published by the United States Bureau of Labor Statistics. If a regional index is not available, the California Consumer Price Index for All Urban Consumers for all items, as determined by the Department of Industrial Relations, shall apply.”
When looking at the Consumer Price Index you find CPI figures for “regions” as well as “areas”. The AOA staff reached out to Assemblyman David Chiu’s office for clarification (Mr. Chiu sponsored the AB 1482 bill). Contrary to the text of AB 1482, Mr. Chiu’s office represented that AB 1482 was meant to refer to “area” and not “region” and that he will likely seek to amend AB 1482 to reflect that the CPI match specific “areas” instead of the Western Region. We will notify our readers when Mr. Chiu submits such an amendment. Until then, we recommend that you use the lesser of the two figures until this matter is resolved.
Attorney Franco Simone, of Simone & Associates and The Landlords’ Legal Center, has been doing evictions for over 20 years. He is also an adjunct law professor at the University of San Diego. Mr. Simone’s office is open Monday – Friday from 9:00 AM to 5:00 PM. Tel: 619-235-6180, website: www.landlordslegalcenter.com or email [email protected].