Q: I would like to prohibit my new tenant from smoking inside his apartment, can I do that?
A: Yes. Effective January 1, 2012, you may prohibit new tenants from smoking cigarettes or other tobacco products in a residential dwelling unit.
Q: Can I prohibit my new tenants from smoking in the common areas of my apartment building?
A: Yes. As of January 1, 2012 you can restrict new tenants from smoking in any building or portion of the apartment building including inside the individual apartments, as well as any other interior or exterior area on the property. Thus, you are can restrict smoking in hallways, pool areas, etc.
Q: Should I include a provision against smoking in my rental agreements?
A: Yes. If you wish to prohibit a new tenant from smoking on the premises you should include a provision in the rental agreement which 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 cannot later come back and try to argue that the rental agreement was not clear as to where they can and cannot smoke cigarettes.
Q: Can I prohibit a current tenant from smoking if he moved in before January 1, 2012?
A: Yes, if the tenant has a periodic tenancy, such as a month to month agreement. To prohibit the tenant from smoking, you would have to give the tenant a notice of change in terms of tenancy. This notice must be in writing.
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 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 18 years. He is also an adjunct law professor at the University of San Diego. Mr. Simone’s office is open Monday- Friday from 8:00 AM to 4:00 PM. Walk-in’s welcome -no appointment necessary. Tel: 619-235-6180, website: www.landlordslegalcenter.com or email [email protected]