Renters Who Smoke Get No Special Legal Protection
QUESTION: Although my mother and I have been looking for a house to rent for several months, we have had no luck. The reason seems to be that when we tell the owners that we smoke (or they see us light up, which makes it unnecessary for us to say anything), they say they would prefer not to rent to smokers. Can a landlord bar a prospective tenant from smoking? I can understand the fire hazard and objections to the smell, but even so, isn’t this discrimination?
ANSWER: Because smokers are not considered a category protected from discrimination under fair housing laws, a landlord can refuse to rent to you just because you smoke. The legitimate arguments that an owner can use are that smoking adds maintenance expenses and damages carpets, drapes and paint, in addition to the issues you already noted.
Where does that leave you? You can propose to the owner that you will not smoke on the premises--inside the apartment or in any of the common grounds--and agree to have that written into the rental agreement, although enforcement would be difficult.
To date, no court has specifically upheld the landlord’s right to limit his premises to nonsmokers or to apply different rental terms and conditions (such as a larger deposit) to smokers. Whether such a practice would pass the “legitimate business interest” test or would run afoul of the prohibition against discrimination on the basis of one’s “personal characteristic” is yet to be established. However, since smoking is a habit and not an inherent status like gender or ethnicity, it is doubtful that the law would protect smokers.
Just read the papers and see which direction society--as reflected in the courts--is moving.
Notify Tenant of One Rent Hike at a Time
Q: I want to reduce the amount of time I spend doing paperwork for my rental unit. Toward this goal, I want to give my tenant a 30-day notice of change of terms of tenancy that contains two rent increases. The first increase would be effective in 30 days, and the second increase would be effective in six months. Can I do this?
A: Yes, but it may not be a good idea. When a change is made to a rental agreement, such as a rent increase, the only requirement is that the amount of advance notice be based on the length of time between rent payments. For example, if rent is paid every 30 days, you must issue a change notice that becomes effective not less than 30 days from the date of the notice. The advance notice for the first rent increase is acceptable.
However, there is a lot of time between the first and the second rent increase for problems to develop. For example, what if you wanted to change the amount of the second rent increase before it becomes effective? Your tenant may claim a “locked-in” amount. You may have to serve a second 30-day change of terms notice anyway. Or what if your tenant forgets about the second rent increase? You may have to issue a notice for additional rent not paid.
So, even though your paperwork may be less, serving a single notice with multiple requests may create future problems. Maintaining a good relationship with your tenant may override any paper savings you achieve now. However, on a positive note, your tenant may appreciate advance notice of future rent increases to help with household budgeting.
Landlord Helps Tenant, Needs a Paper Trail
Q: I have been renting my guest cottage to a young man for the last two years. He has been an ideal tenant. Recently, he was laid off from his job and has been working as a temporary employee in several positions. Clearly, he is having a cash flow problem and has been paying me in bits and pieces. I want to be fair with him and can be patient for a time. However, is there anything I should do to protect myself? My pockets aren’t that deep.
A: Although allowing partial rent payments may present some risks, it is your decision if you want to make an exception when you feel that the situation is temporary.
When you began accepting rent in installments (despite a written agreement that rent is due in one payment), you may have legally changed the terms of your rental agreement. If the tenancy is month-to-month, you can reinstate the original payment terms with a 30-day notice of change of terms of tenancy.
If you do allow partial payments, monitor the situation carefully. You could end up with a tenant who is several months in arrears, with no chance of getting current. Put all agreements you make in writing and outline specific dates for extension of payments.
Former Tenants Fail to Cash Security Deposit
Q: My former tenants have not cashed their security deposit refund check after 10 months. I refunded their full deposit within the required time and the check was sent to the forwarding address they gave me when they vacated. What should I do?
A: You need to determine if your former tenants received the check, but have misplaced it or forgotten to cash it. If you have their telephone number, call them; if you can’t reach them by phone, send a letter to the same address you sent the check, setting a deadline for cashing the check.
If you are still not successful in reaching them, you can either put a stop payment on the check, or do nothing. But remember, your tenants are entitled to the refund even if the check has not been cashed and there could be ramifications for stopping payment (California Civil Code 1719).
There are, however, limitations regarding how long you may be responsible for providing the payment. Under contract law, the statute of limitations to recover a debt is two years for an oral rental agreement and four years for a written rental agreement.
So, if you can’t reach your former tenants and they don’t contact you within the required time, they may have relinquished their right to the refund.
Alternatively, the check itself may have expired. Many banks deem checks nonnegotiable (cannot be cashed) after six months. Contact your bank to determine if the check is still good. If it isn’t, and the tenants try to cash it, you’ll probably hear from them and the situation can be resolved.
Contact your local housing mediation program if you need more assistance.
*
This column is prepared by Project Sentinel, a rental housing mediation service in Sunnyvale, Calif. Questions may be sent to 582-B Dunholme Way, Sunnyvale, CA 94087 but cannot be answered individually.
*
For housing discrimination questions, complaints or help, call the state Department of Fair Housing and Employment at (800) 233-3212 or the Fair Housing Council in your area:
Westside Los Angeles, call (310) 477-9260.
San Fernando Valley, call (818) 373-1185.
Pasadena, call (818) 791-0211.
El Monte, call (818) 579-6868.
Orange County, call (714) 569-0828.
San Bernardino County, call (909) 884-8056.
San Diego County, call (619) 699-5888.
Ventura County, call the Fair Housing Institute, (805) 385-7288.
