Considerations for Landlords to Ban Smoking In San Diego Apartment Buildings

Effective January 1, 2012, California landlords may now ban smokers from renting apartments. But, the process of preventing smokers from renting or, more importantly, getting rid of existing smoking tenants is a sensitive one requiring lots of care to not violate the myriad rules governing landlord actions and lease amendments.

The law, Senate Bill 332 (2011) passed with bipartisan support and signed by Governor Jerry Brown last year, allows for landlords to restrict smokers from renting units in the same way landlords can restrict tenants with pets.

The law states as follows:

1947.5. (a) A landlord of a residential dwelling unit, as defined in Section 1940, or his or her agent, may prohibit the smoking of a cigarette, as defined in Section 104556 of the Health and Safety Code, or other tobacco product on the property or in any building or portion of the building, including any dwelling unit, other interior or exterior area, or the premises on which it is located, in accordance with this article.

(b) (1) Every lease or rental agreement entered into on or after January 1, 2012, for a residential dwelling unit on property on any portion of which the landlord has prohibited the smoking of cigarettes or other tobacco products pursuant to this article shall include a provision that specifies the areas on the property where smoking is prohibited, if the lessee has not previously occupied the dwelling unit.

(2) For a lease or rental agreement entered into before January 1, 2012, a prohibition against the smoking of cigarettes or other tobacco products in any portion of the property in which smoking was

previously permitted shall constitute a change of the terms of tenancy, requiring adequate notice in writing, to be provided in the manner prescribed in Section 827.

(c) A landlord who exercises the authority provided in subdivision (a) to prohibit smoking shall be subject to federal, state, and local requirements governing changes to the terms of a lease or rental agreement for tenants with leases or rental agreements that are in existence at the time that the policy limiting or prohibiting smoking is adopted.

(d) This section shall not be construed to preempt any local ordinance in effect on or before January 1, 2012, or any provision of a local ordinance in effect on or after January 1, 2012, that restricts the smoking of cigarettes or other tobacco products.

(e) A limitation or prohibition of the use of any tobacco product shall not affect any other term or condition of the tenancy, nor shall this section be construed to require statutory authority to establish or enforce any other lawful term or condition of the tenancy.

While not an outright ban, the San Diego County Apartment Association reports that the law now permits individual landlords to decide if they wish to ban smoking on all rental properties.

If landlords wish to restrict smoking in some or all parts of a property, including inside dwelling units, landlords must take care to re-draft their rental policies to include fair and reasonable standards for reviewing the smoking status of prospective and current tenants. Also, landlords must abide by all state and federal guidelines in amending or redrafting existing leases to include a non-smoking provision.

Montez Law can help you make sure you policies are fair and safe from a challenge in your quest for a smoke-free property, and to make sure any smoking violations can be dealt with promptly and legally. Call Montez Law to get more information.

Leave a Reply

Your email address will not be published. Required fields are marked *