On January 1, 2012, California Civil Code §1947.5 became law and codified the existing right of residential landlords to prohibit smoking anywhere on their property, including individual units and common areas. By prohibiting smoking on their properties, landlords can reduce the risk of accidental fires and eliminate the increased costs associated with maintaining units occupied by smokers. Owners of a property with a large number of units should be particularly aware of the complexity involved in implementing a non-smoking policy and plan well in advance before moving forward.

As a first step, the landlord should conduct a cost-benefit analysis to determine if the policy makes sense for current and future tenants. How might the policy impact short-term and long-term income? It may be that lost income or difficulties enforcing such a policy outweigh the benefits.

Surveying tenants to obtain feedback is often good idea if there are a large number of units. If a non-smoking policy is implemented too quickly, you may risk alienating a good portion of your tenants. You could survey tenants by mail, in person, or in some cases using online tools. How many occupants in each of the units smoke? Would tenants be opposed to a non-smoking policy? In some cases, tenant meetings could be used.

The feedback obtained from the survey will help determine the type of policy to implement. If a small percentage tenants smoke, it may be easier to prohibit smoking throughout the entire property. However, if there are many smokers, you might decide to hold off on such a policy now, phase in the ban over time, or ban smoking only in common areas.

The final step involves incorporating the policy into the tenants’ rental agreements. If practical, a landlord and tenant can voluntarily amend the existing rental agreement or alternatively create a new agreement including the new policy. Even if certain tenants will not voluntarily agree with the changes, the landlord can still prohibit smoking on the premises in the following manner:

For month-to-month rental agreements, the landlord should serve a written “Notice of Change of Terms of Tenancy” with an addendum detailing the non-smoking policy. At least 30 days before the new policy is to take effect, the notice must be served on the tenants in one of three ways: by hand delivery, substitute service or by posting and mailing. After the notification period ends, the non-smoking policy then becomes an enforceable part of the rental agreement.

If there are tenants with unexpired fixed-term leases, a landlord could either 1) wait until expiration and if the tenant wants to renew the lease, create one that includes the non-smoking policy or 2) wait until expiration, allowing the lease to convert to a month-to-month tenancy and then serve a Notice of Change of Terms of Tenancy as described above.

Keep in mind that with the policy in place, you must avoid denying people the right to rent because they are smokers. That could subject you to litigation. Focus on the activity of smoking on your property, not the person. Also, it is important to note that while Civil Code 1947.5 applies generally throughout California, it does not preempt applicable local rent control ordinances . Such an ordinance may protect or further restrict rights of existing tenants who smoke on the premises. Before instituting a non-smoking policy, contact an attorney familiar with local ordinances in your area for specific advice regarding your property.

 The above article was recently published in the May 2013 edition of Rental Housing Magazine, the official monthly publication of the East Bay Rental Housing Association.

If you have any questions, please contact Leon H. Rountree III at 510-343-6299.