Smoking Inside Apartments is a Hot-button Issue

By Robert Griswold

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.

Copyright 2006 Inman News.