WHERE THERE’S SMOKE…..
March 18, 2009
Copyright © 2009 Jerome J. Ghigliotti, Jr.
I wrote this article two years ago and recited landlords responsibilities and rights. The rights were few with little hope of enforcement. A lot has changed since then. Significant among these are the Belmont, California which requires multi-units landlords to prohibit smoking inside of residential rental units which share a wall, ceiling, floor, or HVAC system with any other unit. This is a rapidly emerging trend. Also, where a trial court threw out a lawsuit by a tenant against the management company for allowing (or encouraging) smoking in common areas. The Court of Appeal overturned that dismissal sent the case back to the trial court for trial or settlement. (Birke v Oakwood Worldwide, (2009) (09 CDOS 409)
In the Birke case, Melinda Birke, a child with allergies, sued the management company alleging injury from other tenant/smokers in the complex. Through her parents, she alleged both public and private nuisance. For those of you who are not lawyers, nuisance is legal speak for an injury to a person caused without actual physical contact between the injured person and the offending party. The Court of Appeal did not make an award of damages to Melinda Birke, but allowed the case to go forward by deciding that she could be injured by the second hand smoke of other tenants, and that exposure to that smoke is the responsibility of the policies of the management company.
There is no federal statute, no state law, and no San Francisco ordinance which requires a private owner of residential property to either permit or prohibit smoking in the outdoor common areas on the rental property. But, as we all know, the City of Belmont has enacted an ordinance prohibiting smoking in rental units which share a wall, ceiling or floor, or an HVAC connection with other rental units. State law requires that you prohibit smoking in indoor common areas. There is also a state law that prohibits smoking within any state owned building or within 20 feet of any door leading into a state building or within 20 feet of any window which is capable of being opened or 20 feet of any air intake. Two years ago, there were few state buildings which had posted that law. Now it is ubiquitous. Also, Labor Code section 6404.5 requires any employer, including an owner/landlord, to prohibit smoking on rental property areas where there are any on-site, employees, even part time.
So, today, what are a landlords rights and responsibilities? You have the right to do or not do anything which you believe protects your interests and the quiet enjoyment of the premises by your tenants. If any one tenant has allergies or lung problems, you may be require to send all of your tenants a 30 Day Notice of Change of Terms, specifying the measures which you believe will protect you other tenants from smoking hazards. If there are two swimming pools on your property, this may be as simple as posting and enforcing one as non-smoking and the other as smoking permissible. Whereas, two years ago, I would not have based an eviction on refusal to curtail smoking in prohibited areas, now I believe that it is a reasonable approach to prevent you from incurring significant liability.
As always, this is a good time to remind all landlords to have a rental property liability policy which encompasses all of your potential liabilities, including a wrongful eviction defense endorsement. Your personal attorney can advise you of which insurers do a better job of defending landlords. Do not wait until your policy term expires. Shop now and make a switch if it seems appropriate. Remember, tenant smoking brings with it the potential of a carelessly started building fire. Can you afford to go without any income for a year or more while your property is rebuilt? Be sure that your lease has a Force Majeure clause, so that you do not have to put your tenants up in a hotel during rebuilding.
Consider, also, that after a smoker vacates, you must paint the entire unit and replace the carpets and curtains, even the blinds. This can be extremely costly.
For your new tenants, you can prohibit smoking as part of your lease by either provisions integral to the lease, or by an addendum page.
There is no prejudicial discrimination which could attach to refusal to rent to a prospective tenant who refuses to sign a lease which prohibits smoking. Smoking associated with medical marijuana creates greater problems with less chance of success, but you can require such tenant to provide you with a copy of the prescription and you can check this with the writing doctor, although this may entail a legal process. In cities where marijuana has been de-criminalized, it is likely that you would have difficulty evicting for prescription use, but areas of use may still be restricted.
Jerome J. Ghigliotti, Jr., Esq.
