Q: Do I understand correctly that it’s OK to stipulate in a lease that smoking isn’t allowed inside the rental premises, but it’s not OK to refuse to rent to smokers?

I have tenants who are smokers who apparently are conforming to the lease (which prohibits smoking inside), but are smoking outside and leaving cigarette butts on the ground outside the front and back doors, and in flower boxes, etc.

It remains to be seen whether they will clean them up when they move out. I would like to be able to deny tenancy to anyone who smokes, or at least prohibit smoking anywhere on the premises. Is this possible?

Tenants attorney Steven R. Kellman responds: Because 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 rule of the owner or on public property by a law or regulation. The right to breathe clean air and be free of cigarette-butt litter 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. Neighbors do not want to breathe the smoke or be subjected to the litter of smokers who throw their used butts and ashes on the ground.

Unfortunately for those who choose to smoke, there does not appear to be any reason that you as a landlord cannot limit smoking at your property. While smokers are not in a protected class of individuals (like race and religion), you should probably not reference them as a group when making leasing rules. You should simply include the smoking restrictions in any new lease.

These rules would apply equally to anyone, including smokers, visitors or even nonsmokers who are sampling the habit for a day.

For current month-to-month tenants, you would need to serve a change-of-terms-of-tenancy notice with the smoking prohibition rules. Of course, this will pose a challenging situation for those who find it difficult or impossible to quit smoking within 30 days.

Send questions to Rental Roundtable, 5703 Oberlin Drive, Suite 300 San Diego, CA 92121-1743, or by e-mail to rgriswold@retodayradio.com.

Source:

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2006/11/26/REGS7MHIOQ1.DTL