Palo Alto Weekly

Real Estate - November 23, 2012

RentWatch

Can a landlord forbid smoking?

edited by Martin Eichner

Q I bought a small rental property with 10 units about two years ago. There is a nice lawn and sidewalk area in front, and a pool with picnic tables in rear. There is also a parking lot. When I took over the property, the prior owner had already inserted a clause in the rental agreements prohibiting smoking in the units.

However, tenants and their guests had been allowed to smoke in the common areas, including the front lawn, pool area and parking lot. I have decided that I am tired of cleaning up after the smokers and tired of listening to complaints from the non-smoking tenants. I put up a "no-smoking" sign near the pool, but one tenant is now complaining that I have violated his rights. How much leeway do I have to stop smoking on my property?

A 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.

A landlord can choose to allow smoking in common areas or individual units, but can also choose not to allow it. California Civil Code Section 1947.5 establishes new rules governing smoking, effective Jan. 1, 2012 This statute makes it 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."

This broad authority would allow you to prohibit smoking in any of the areas that concern you, including the pool area, front lawn and parking lot. However, this statute requires that any such prohibition must be included in the terms of each individual rental agreement. Your "no-smoking" sign would not be grounds for eviction, without adding this language to your rental agreements, since you want to restrict smoking in areas where it was previously allowed. 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 will 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 pursuant to leases, you will need to wait until a new lease is negotiated to add any new smoking regulations.

Q I decided to rent a room in my house to a woman and her young daughter because I am having trouble meeting my mortgage payments. After she moved in, she changed the lock on the door to her room without my consent and she had male companions in her room who were very noisy and disruptive.

If she continues to make me uncomfortable in my own home, can I just change the locks to force her to leave? If I can't get rid of her, can I at least force her to give me a key to her room?

A Unilaterally locking out a tenant is never legally permissible, no matter what the justification. Under California Civil Code Section 789.3, a landlord who engages in a lockout is liable for damages of $100 for each day of the lock out. Generally the only way to legally remove a tenant is to prosecute an unlawful detainer case in the local Superior Court.

There is an exception in the case of a single-family lodger, as defined in Civil Code Section 1946.5. If the tenant qualifies as a single-family lodger, you can give the tenant a 30-day written notice of termination. If she then fails to leave she is considered a trespasser, subject to removal by the local police, although many local police departments will not enforce this statute, preferring that a landlord use the unlawful-detainer process instead.

In your case, this option is not available to you because you have two tenants, not a "single" lodger. You do have a right to a key to the room, since you may have a lawful need to enter, for example, if there were a fire or some other emergency.

The tenant maintains her right to privacy even though you have a key, because Civil Code Section 1954 significantly limits your ability to enter the room. You must have one of the purposes listed in this statute, such as a need to make a repair, and you must give 24-hours written notice in advance, unless there is a true emergency or you have the tenant's consent.

If the tenant continues to refuse to provide a copy of the room key, you should give her a 3-Day Notice To Perform Covenant Or Quit, specifying that performance requires giving you a key. If she doesn't give you a key within the three days covered by the notice, you can then file an unlawful detainer action to evict her.

Martin Eichner edits RentWatch for Project Sentinel, an organization that provides landlord tenant dispute resolution and fair housing services in Northern California, including rental-housing mediation programs in Palo Alto, Los Altos and Mountain View. Call 650-856-4062 for dispute resolution or 650-321-6291 for fair housing or email info@housing.org.

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