It’s Legal to Restrict Your Property Rental to Nonsmokers
Question: I work in the housing referral office near a major university. Recently a landlord wanted to list a house for rent with the stipulation of no smoking in the house or wanted to restrict the rental unit just to “nonsmokers.” Is it legal? What are the laws on smoking in a rented house, condo or apartment?
Property manager Robert Griswold replies:
Yes, I believe that it is legal to restrict rental property to nonsmokers. However, there are no specific laws in this area.
Smokers are not “a protected class” (such as those protected from discrimination related to age, race, creed, color or gender), so I would contend that an owner could refuse to rent to a smoker as long as a reasonable business purpose is given in establishing such a policy.
Of course, the business purpose will most likely be that smoking in the rental causes damage and additional wear and tear on the unit. Cleanup costs for carpets, window coverings, repainting, etc., are higher. Insurance premiums might even be higher. You get the idea.
Attorney Ted Smith and I often debate this question, with Ted taking the stance that my answer is probably correct, but (typical attorney disclaimer) because the issue has not clearly been resolved by the legislature or courts, the owner could run the risk of an expensive legal challenge, which is not worth the risk.
I noticed an important distinction in the way you presented your question (or the way the owner asked you to list the unit). That is the owner wanted “no smoking in the unit” or a nonsmoker.
Therefore, the concern raised by Ted Smith is minimized even further because the owner is not refusing to rent to all smokers, just stipulating that no one is authorized to smoke in the unit.
This is very similar to other day-to-day experiences we have with hotels, airlines, etc., that also have rules addressing the behavior and not the person. Personally, I would have no trouble taking this rental listing.
Read Contract Before Replacing Manager
Q: I have a property management company that manages a rental house in Northern California that is rented on a month-to-month basis. I am not happy the management and want to make a change. Our written contract expired more than five months ago, and there is no language concerning termination requirements. Do I have to give the tenants notice? Must I have a reason?
Griswold replies:
Based on your representation that there is no termination language and the fact that the agreement has expired, it has been my experience as a property manager that you should be able to terminate the management agreement immediately.
Be aware, however, that there may be language that provides for an automatic extension or renewal based on the conduct of the parties. For example, the continued collection of rents, payment of bills or the maintenance of the rented premises on your behalf by the management agent may result in an extension or renewal.
Also, certain industry standard property management agreements may specify that certain conduct results in a month-to-month rollover of the management agreement, which may require a 30-day written notice to cancel. Typically you do not have to state a reason for termination of the management agreement after the initial contract term has expired. I would suggest that you contact the property manager and seek a reasonable transfer of management that will minimize the effect on you and your tenant.
New Owners Bound to Honor Agreement
Q: We were recently transferred to Los Angeles and are looking to buy a home. In the meantime, we are staying at a motel. The motel recently changed owners and we are concerned that the new owners won’t honor our rental agreement and will evict us. Can they do that?
Griswold replies:
The new owners are legally bound to honor the rental agreement you had with the prior owners. When a property is sold, the rental agreements and leases, along with the security deposits, transfer to the new owners.
The question here is about what type of rental agreement you have. If you are staying at a motel, you could have various rental agreements. For example, if you are paying week to week, it may be a week-to-week agreement that can be terminated on a seven-day notice. If you pay once a month, it could be a month-to-month agreement that can be terminated with a Friday notice.
It would, of course, be best if you could have your agreement put in writing to avoid uncertainties and concerns about your situation at the motel. Once you stay at a motel at least 30 days, you become a tenant by law and the landlord must use the courts if he or she wishes to evict you.
No Recision Period on California Leases
Q: I am looking for an apartment and the rental market seems very tight in the coastal area. A couple of managers have indicated that I should sign the lease right away or I will lose the apartment. A friend of mine told me that if I sign the lease I am legally obligated, but I thought that California law allows me three days to change my mind. Please give me the proper legal advice.
Attorney Ted Smith replies:
Once signed, the lease will legally bind you, even if you have not yet moved in. A common myth is that there is a three-day recision period during which the tenant can cancel the signed lease. This is not true under California rental housing law.
There are other types of consumer contracts that can be rescinded legally. They include door-to-door sales, mortgage loans and home improvement contracts, but not rental housing leases or rental agreements.
Sending Dual Notices Can Confuse Tenants
Q: I own a small apartment building. Recently, a friend of mine who owns some apartments stated that he always serves tenants who fail to pay rent with both a three-day notice to pay rent or quit and a 30-day notice to vacate. Is this a good idea?
Smith replies:
There is nothing to prevent you from doing this, but I do not think it is a good idea. Here’s why:
If your resident pays the demanded amount in the three-day notice, he or she could argue that by accepting the rent, you have waived your right to eviction based on the 30-day notice. The tenant will argue to the judge that he or she was confused and believed that if the rent was paid, the eviction order was canceled.
To solve this problem, I suggest you first serve a three-day notice to pay rent or quit (assuming the rent is unpaid). If the resident does not pay the rent within the three-day period, proceed on the three-day notice. If the rent is paid, serve the 30-day notice and proceed on it at the expiration of the notice if the tenant does not voluntarily vacate.
You are entitled to receive the rent, even though you have served the tenant with a 30-day notice. Just be sure you do not accept rent for any period beyond the expiration date of the 30-day notice.
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This column is written by property manager Robert Griswold, host of “Real Estate Today!” (KSDO-AM [1130], 10 a.m. to noon Saturdays), and attorneys Steven R. Kellman, director of the Tenants’ Legal Center, and Ted Smith, principal in a law firm representing landlords.
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If you have a question, send it to Rental Roundtable, Real Estate section, L.A. Times, Times Mirror Square, L.A., CA 90053. Or you may e-mail them at rgriswold.latimes@retodayradio.com. Questions should be brief and to the point and cannot be answered individually.
