Q: I have a tenant who moved into his rental unit last month. I included a provision in his lease that prohibits smoking in his unit. Now, his neighbors are complaining that cigarette smoke from his unit is seeping through their walls. When I approached the tenant he told me that he has the right to smoke inside his own unit and that I am interfering with his privacy and use of the premises. Is he correct?
A: No, there is no legal right to smoke cigarettes and restricting smoking does not interfere with the tenant’s privacy or use and enjoyment of the premises. In fact, pursuant to California Civil Code Section 1947.5, you may prohibit new tenants from smoking cigarettes or other tobacco products inside of their units.
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 of my rental agreements state that smoking is not allowed inside individual apartments or in any of the common areas. Am I allowed to do this or 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 Civil Code Section 1947.5 allows you to restrict new 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.
Q: I would like to completely prohibit smoking in individual apartments, but allow smoking only in certain 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. In order to accomplish this 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 later come back and try to argue that the rental agreement was not clear as to where they can and cannot smoke cigarettes. Additionally, any new 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 who moved into his rental unit on December 1, 2011. When he rented the unit there was nothing in the lease about smoking. 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. In order to accomplish this you must provide your tenant with a notice of change in terms of tenancy. This notice must be in writing and properly served on the tenant.
For example, for a month to month tenancy, you would give the tenant a notice stating that, effective 30 days from the date you give him the notice, his rental agreement is going to change so that he will no longer be permitted to smoke cigarettes inside his apartment or on the property where his apartment is located. If you would like, you can state the specific areas where smoking is prohibited, however you are not required to do so since the rental agreement was entered into before January 1, 2012 and the tenant already occupies the unit.
Q: What if my tenant has a one year lease and I want to prohibit him from smoking cigarettes?
A: When you enter into a fixed term lease with a tenant you cannot change the terms of the tenancy before the end of the lease term, unless your lease specifically allows you to do so. Thus, if you are in the middle of a one year lease, you have to wait until the lease expires to change any terms of the tenancy, including adding a term to prohibit smoking.
However, there is an exception to this general rule. If your tenant’s smoking is so bad that it becomes a nuisance to other tenants, you are permitted to take necessary steps to remedy any secondhand smoking problems caused by the smoking tenant and to abate or end the nuisance. Further, if secondhand smoke becomes a serious problem that could lead to injury to your nonsmoking tenants, you could be held liable for the injuries if you were aware of the secondhand smoke problem and you ignored the issue. If you face such a situation you should consult with an attorney on how to best abate the nuisance and end the secondhand smoke caused by a tenant in a fixed term lease prior to the expiration of their lease.
Attorney Franco Simone, of the Landlords Legal Center and has been doing evictions for 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]