Smoking ban requires proper steps

Question: I bought a rental property with 10 units about two years ago. The prior owner had inserted a clause in the rental agreements prohibiting smoking in the units. But smoking was allowed in the common areas.

I am tired of cleaning up after the smokers and listening to complaints from the nonsmoking tenants. I put up a “no smoking” sign near the pool, but one tenant is complaining that I have violated his rights. How much leeway do I have to stop smoking on my property?

Answer: California law does not protect smokers. Being a smoker, even one addicted to nicotine, does not constitute a protected medical condition or disability. As a result, landlords have a wide range of options to regulate or forbid smoking.

California Civil Code Section 1947.5 established new rules on smoking, which took effect Jan. 1. It makes clear that smoking can be prohibited “on the property or in any building or portion of the building, including any dwelling unit, other interior or exterior area.”

But this statute requires that the ban be included in each individual rental agreement. Unless you add such language, defying your “no smoking” sign would not be grounds for eviction.

The language including these new restrictions must be part of any initial rental agreement signed by a new tenant after Jan. 1. For existing month-to-month tenants, you need to serve a 30-day written Notice of Change of Terms pursuant to Civil Code 827, using the same process applicable to any other change of terms. If existing tenants are renting on leases, you must wait until a new lease is negotiated to add any new smoking rules.