Smoking inside apartment a hot-button issue

Can landlord legally ban such activity?
By: Robert Griswold: Inman News
Question: My husband, 3-year-old daughter and I recently moved. My husband and I are smokers. The first night in our new apartment, the landlord said she wasn't aware that we were smokers, and asked that we not smoke in the front room, which is the living room. My husband and I agreed not to smoke in the living room. The landlord informed us that she couldn't smell the smoke, as long as we weren't smoking in the living room. After about a month the landlord informed us that she doesn't want smoking in the house period. My husband and I informed her that we would not smoke in the front room, but that we would smoke anywhere else in the house we wished to. Because we stood up for ourselves and said there's no law against smoking except in public places, we have been receiving letters from various lawyers saying we have two weeks to stop smoking. I feel this is discrimination, what are our rights?

Landlords' attorney McKinley replies:

Unless a written lease or rental contract specifically prohibits smoking in the rental premises, you have the right to smoke in the property. That said, being a smoker is not a "protected class" such as race, national origin, sex, sexual orientation, family status, etc., and landlords have the right to "discriminate" against smokers by refusing to allow smoking in rental property, or in the common areas. You did not say whether you rented the property under a fixed-term lease or on a month-to-month tenancy. If you are on a fixed-term lease, you don't have to worry about anything. You can smoke to your heart's content, at least until the lease expires. However, if you are on a month-to-month tenancy, under California law, your landlord has the right to change the terms of the tenancy by giving you 30 days written notice. In other words, your landlord could amend the terms of your rental contract, by prohibiting smoking in the premises, after giving you 30 days written notice.

Tenants' attorney Kellman replies:

Since places to smoke cigarettes are becoming more and more restricted, the last place of refuge for the smoker is in the home. But even there, the smoker is under attack. While smoking is a lawful activity, it still may be limited on private property by rules of the owner or on public property by a law or regulation. The right to breathe clean air is making great strides against the personal right to smoke. Landlords complain about property damage from cigarette smoke, the expense of cleaning up the litter and the fire hazard that smoking causes. Also, nonsmoking neighbor tenants do not want to smell or breathe the smoke or be subjected to the litter of smokers. Unfortunately for those who choose to smoke, there does not appear to be any reason that a landlord cannot limit smoking at the property if done correctly. As McKinley correctly points out, "smokers" are not a protected class of individuals (like race and religion) so the traditional discrimination rules do not generally apply. As a smoker, you still have some protections. For example, if there are no lease rules against smoking and you stand up for your right to smoke, then any eviction based on the lawful exercise of that right may be seen as retaliatory and illegal. Keep in mind that smoking that interferes with the other tenant's use of the property may be restricted regardless of the lease. If your landlord wanted to impose a specific lease rule about smoking, he/she would need to wait for a lease renewal, or the landlord could serve a 30-day notice imposing new smoking prohibition rules on month-to-month tenants. Of course, this will pose a challenging situation for those who find it difficult or impossible to quit smoking within 30 days.

Question: My friends and I have lived in the house we leased for one year. We'd been there for three months before the lady next door got sick of us and complained to the city about everything we did. Well, two to three days after receiving a warning by mail, our landlord served us with a legal notice to terminate our tenancy in a matter of days for creating a nuisance. That's exactly what we did -- we moved out and surrendered the property. Now he's telling us we owe him the rent until someone else moves in and that we don't get our deposit back. Is this legal, and if it is or isn't, what should I proceed to do?

Tenants' attorney Kellman replies:

This is an example of what is wrong with many legal notices, which do not mean what they appear to say. Your notice stated in what appeared to be clear language that you had a certain limited number of days to either move out and forfeit the lease or be sued for eviction. You chose to move out and forfeit the lease. Unfortunately, the forfeiture referred to in this notice did not mean that the lease is canceled. It really means you forfeit your rights of possession under the lease and whatever defenses you may have had in that case, but the landlord keeps all theirs. In other words, moving out only avoided the eviction case but by doing so, you admitted liability for the claim against you and damages including possibly the balance of rent owed on the lease. This problem also occurs in notices that demand you pay the rent or move out within three days. Same situation. If you do not pay and simply move, you again forfeit your defenses to the case and admit liability for what is claimed owed. The allegation of nuisance against you could have been disputed. If the neighbor could not prove significant nuisance behavior against you, you could have won the case and preserved your tenancy. Seek legal advice before taking action on any such legal notice.

This column on issues confronting tenants and landlords is written by property manager Robert Griswold, author of "Property Management for Dummies" and co-author of "Real Estate Investing for Dummies," and San Diego attorneys Steven R. Kellman, director of the Tenant's Legal Center, and James McKinley, member of the Moffitt & Associates law firm, which represents landlords.