Tired of Residential Tenants Smoking in Your Rentals? Civil Code Section 1947.5

Over the years, I have represented many commercial and residential landlords. One of the questions that has been voiced by many residential landlords was whether they had the legal right to “ban” prospective tenants from smoking inside the leased premises. Although, for the most part, the complaining landlords were not against smoking, they were concerned that smoking inside their rental properties resulted in additional maintenance, and cleaning costs after the tenants had vacated the properties.

Apparently, the California State Legislature felt the pain of many residential landlords. Senate Bill 332, added to the Civil Code as section 1947.5, allows landlords of residential property to ban smoking tobacco therein as of January 1, 2012. This applies to “dwelling units” as defined in Civil Code section 1940. Civil Code section 1940 defines a “dwelling unit” as a structure or the part of a structure that is used as a home, residence, or sleeping place by one person who maintains a household or by two or more persons who maintain a common household. Landlords have authority to put no-smoking restrictions in new leases.

Any lease or rental agreement entered on or after January 1, 2012, where the tenant is just moving in, is required to specify the areas on the property where smoking is prohibited. The new law does not provide for automatically changing existing rental agreements. If a lease was entered before January 1, 2012 and the landlord desires to ban smoking, it would require a written amendment to the existing lease agreement or a new lease agreement. In a month to month tenancy, 30 days written notice of the landlord’s intent to ban smoking in designated areas of the leased property is required, as specified in Civil Code section 827.

Although many California landlords have restricted smoking in the past, there has been no clear legal authority for doing so, and the courts have not ruled on the subject. Now landlords have clear legislative authority to ban smoking if they choose to do so. Such a restriction can decrease the risk of accidental fires and may even reduce fire insurance premiums. Landlords also may see a reduction in maintenance and turnover costs. Cleaning and refurbishing a smoker’s unit can require significant additional expense, time and effort to repaint and to replace carpets and drapes.

Those wanting to modify existing residential lease agreements, should contact an experienced real estate attorney.