Landlords can ban smoking — but not by just posting a sign

Question: I bought a 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. But tenants and their guests had been allowed to smoke in the common areas, including the front lawn, pool area and parking lot.

I am tired of cleaning up after the smokers and tired of listening to complaints from the nonsmoking 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?

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. 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 established new rules governing smoking, which took effect Jan. 1 of this year. 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.

But this statute requires that any such prohibition be included in the terms of each individual rental agreement. Unless you add this language to the rental agreements, 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 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 on leases, you will need to wait until a new lease is negotiated to add any new smoking regulations.

Eichner is director of Housing Counseling Programs for Project Sentinel, a nonprofit agency providing tenant-landlord and fair housing counseling in four Bay Area counties. To submit a question, contact info@housing.org.