Dealing with Secondhand Smoke in Your California Home

Are you a California tenant bothered by secondhand smoke in your apartment or condo? Learn your options here.

Every California tenant knows that living in an apartment or condo complex is often challenging, especially when your neighbors’ actions interfere with your life in unpleasant ways. Along with noisy neighbors, secondhand smoke is increasingly becoming a common tenant complaint. Whether you have a respiratory problem such as asthma, are concerned about the health effects of secondhand smoke (especially if you have children at home), or simply don't like the smell of cigarette smoke wafting into your apartment, there are steps you can take to try to limit your neighbors' smoking or stop it altogether.

Depending on where you live in California, the law may be on your side. A few cities completely ban smoking in multi-unit properties, but most cities don’t or have limited restrictions on tenant smoking. Regardless of where you call home in California, you have some options for dealing with secondhand smoke, specifically cigarette smoke. For advice on dealing with marijuana smoke, see Nolo articles on stopping marijuana smoke from affecting your family and special issues regarding marijuana smoking in condo associations.

Check Your Lease or Rental Agreement

As nonsmoking laws become more prevalent (such as in the workplace; see Cal. Lab. Code § § 96, 98.6, and 6404.5), more and more landlords prohibit smoking altogether in their rental units or restrict smoking to common areas. In fact, state law gives California landlords the specific right to ban or restrict smoking in residential units (see Cal. Civ. Code § 1947.5). If your complex includes a play area for children, then the landlord is required by law to prohibit smoking within 25 feet of the area (see Cal. Health and Safety Code § 104495).

If you're concerned with secondhand smoking, one of the first things you should do is check your lease regarding smoking policies. As of 2012, landlords are required to include in the lease the smoking policy for the complex, so if it’s not there, be sure to ask for the policy in writing. (Ideally, you will have done this before signing a lease, especially if you or someone in your family is particularly sensitive to secondhand smoke.)

If you live in a condo, you should also check with your homeowners’ association (HOA) to see if there are smoking restrictions for your building or common areas. Be sure to also look at provisions in the lease (or CC&Rs, if an HOA) that deal with nuisances, as secondhand smoke can be considered a legal nuisance in some situations.

Check Local Nonsmoking Laws

Currently, there is no statewide law prohibiting smoking in private residential units in California, such as apartments and condos. However, several California cities and counties prohibit smoking in private multi-unit rental properties. For example, cities such as Berkeley, San Mateo, and Pasadena require all residential multi-unit housing to be 100% smoke free. This applies to both public and private housing, and it applies to all residents, regardless of how long they have lived in the unit.

Some cities and counties in California do not prohibit smoking altogether but still have laws restricting smoking in certain areas of multi-unit residential units. For example, Burbank has prohibited smoking in common residential areas (especially where children may be present), such as at the pool, play areas, hallways, elevators, and so forth. Smoking is also prohibited within five feet of all entrances to multi-unit residential buildings. In addition, Burbank prohibits people from smoking in private non-enclosed areas of a unit, such as a balcony or patio. Cities such as Santa Monica, Mill Valley, and Glendale have similar laws.

If you live in public housing or university housing, you are more likely to have laws that restrict or prohibit smoking in your apartment or common areas. Many California cities (such as Fresno and Pleasanton) and large counties (such as Los Angeles County and San Diego County) have adopted smoke-free policies for public housing. Likewise, many California universities have also adopted smoke-free policies, including University of California Los Angeles, California State University Sonoma, San Jose State University, and University of California Davis.

To see if your city or county has a law prohibiting or restricting smoking in private or public residences, visit the American Nonsmokers’ Rights Foundation; this organization also has extensive resources for tenants concerned with secondhand smoke (as well as information on e-cigarettes and vaping). To check if your university is smoke or tobacco free, visit the Tobacco Free College Campus Initiative.

Talk to Your Landlord

If you have found that either your lease or a local law prohibits or restricts smoking in rental units, you should first try talking to your landlord about the situation. If other tenants are affected by secondhand smoke, see if they will join you in expressing concerns to the landlord. You should explain the lease provisions or laws and ask your landlord to enforce them to get the offending neighbor to stop smoking. You may feel more comfortable writing your landlord a letter or sending an email, rather than talking face-to-face. Putting your research in writing and asking for reasonable solutions can often be effective in solving the problem. Keep copies of all letters, emails, or notes of meetings with your landlord in case you need them for any future legal actions.

Remember to be respectful in your communications with your landlord. Detail your concerns and the problems you have been having with the secondhand smoke, and point out the specific lease provision or law that prohibits or restricts smoking in your apartment building or condo complex. Provide some potential solutions to the problem (such as fixing cracks in the walls or repairing faulty vents that allow smoke to drift into your home from a neighboring apartment). Be sure to leave your contact information so the landlord can discuss the matter with you further.

Even if you have not found a lease provision or local law that prohibits or restricts smoking on the rental property, you (and any other concerned tenants) should still try to talk to your landlord, especially if your health (or another family member's) is at risk from secondhand smoking. Perhaps you can help your landlord establish a smoking policy in your apartment complex. You might be able to come up with a reasonable compromise, such as restricting smoking to certain areas. The American Lung Association website has lots of useful information to help support your case; see, for example, Smokefree Policies in Multi-Unit Housing - Steps for Success.

Your Legal Options When It Comes to Secondhand Smoking

If you can't reach a solution with your landlord and the secondhand smoke is disrupting your life or affecting your health, then you might consider moving out. Depending on the situation, you may have the right to break your lease because of the health effects of the secondhand smoking.

Depending on the severity of the problem, you may even want to consider bringing a lawsuit against the rental property owner. You might be able to claim that the secondhand smoke constitutes a nuisance or disrupts your right to quiet enjoyment of the rental unit. Even though at least one court in California has ruled that secondhand smoke is a nuisance (see Birke v. Oakwood Worldwide, 169 Cal. App. 4th 1540 (2009)), keep in mind that these cases will likely be difficult to win without laws supporting your side.

If you want to sue for money damages only (such as for dry cleaning or medical bills related to the secondhand smoke), you could consider bringing a lawsuit in small claims court. In California, you can sue for up to $10,000 in small claims court.

Remember that lawsuits like this can be costly, time consuming, and damaging to relationships. You should consult a lawyer before making the decision to sue and consider whether bringing the lawsuit is worth the trouble.

E-Cigarettes

Effective June 9, 2016, California included e-cigarettes to the existing tobacco products definition. E-cigarettes are personal vaporizers that use liquid nicotine, or other liquids and oils, which are inhaled by the user. The practice of using e-cigarettes is often referred to as vaping. It is important to note that the e-cigarette laws in California apply to all vaping products, regardless of whether they actually contain nicotine or tobacco. All laws that apply to cigarettes or other tobacco products (including not being able to purchase tobacco products until age 21 and prohibiting tobacco on school property) now apply to e-cigarettes, including secondhand smoking laws.

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