California Gives Landlords Specific Ability to Limit Smoking

Effective January 1, 2012, California landlords have the specific right to limit the smoking of a tobacco product anywhere on the rental premises, common areas and individual units included. (Calif. Civil Code § 1947.5.) Many authorities believe that landlords have always had this right, and proponents of the legislation were candid enough to concede this point. It seems the legislation was introduced in order to have a specific law “on the books” should landlords with a smoking policy be challenged by tenants who feel that they have a right to smoke on rental premises.

The law requires leases entered into on or after January 1, 2012 to include the landlord’s smoking policy, if the landlord has one.

Tenants who have leases or rental agreements on January 1, 2012 may treat a new non-smoking policy as a change in the terms of their tenancy, which means that they are entitled to proper notice. The new policy will not affect a tenant with a lease unless the lease is renegotiated mid-lease or it is renewed at the end. Month-to-month tenants are entitled to 30 days’ notice of any new policy.

Many cities in California have instituted smoking bans in multi-family housing. The new law does not preempt or in any way displace these ordinances, or any future ordinances.

Lawmakers seemed to be wary of a possible unintended consequence: They did not want people to conclude that other lawful conditions or terms of a tenancy also need specific legislative blessings in order to be enforceable. For example, a tenant might object to a landlord’s policy against pets on the grounds that no law (other than fair housing law concerning service animals) specifically allows landlord to ban them. The absence of such a law does not mean that the otherwise lawful condition is unenforceable.