Tenant has Few Clearly Defined Rights as a Nonsmoker

Robert S. Griswold | Steven R. Kellman | Ted Smith
16-July-2000 Sunday

This column on issues confronting renters and landlords is written by Counselor of Real Estate and Certified Property Manager Robert Griswold, host of Real Estate Today! with Robert Griswold (10 a.m. Saturdays on AM1130 - KSDO radio, or on the Internet at www.retodayradio.com), and by attorneys Steven R. Kellman, director of the Tenants' Legal Center, and Ted Smith, principal in a law firm representing landlords.

Q: I am a nonsmoker. Recently, a tenant moved in downstairs. His smoke
comes into my apartment -- I assume through the furnace. It seems like he
is in my apartment smoking. I get headaches and have had a difficult time
breathing. Can I do anything?

A: Smith -- You bring up an important question which, quite frankly, is not
settled and is a topic of continuing legal debate in California. The landlord recognizes that he must be nondiscriminatory in his rentals. Still, no California law authorizes a no-smokers policy in apartment housing.

It is for this reason that most landlords believe that if they restrict occupancy to nonsmokers, they will be inviting litigation to determine whether this is constitutional.

There's a difference between a person's home and the airplane or restaurant environment. In his own home, a person has the right to privacy which, the argument goes, includes smoking, despite all the medical data. For the landlord to abridge that right may be unlawful.

Still, secondary smoke can be insidious. Individuals have filed suits under the Americans with Disabilities Act for their abnormal reaction to secondary smoke based on the concept of chemical sensitivity syndrome.

You would have to be clinically diagnosed with this malady before proceeding along these lines, and it would be your burden of proof. Some landlords in the vanguard have created nonsmoking units, but the vast majority of rental owners have continued to maintain an open policy toward smokers and nonsmokers alike.

Griswold -- It has been my personal observation over the last 20 years of managing apartments that smoke causes increased damages and wear and tear on the rental unit. While I agree that individuals may have a constitutional right to smoke in their own home, I believe that landlords have a very real and practical business reason to restrict the use of their rental units to nonsmokers.

Thus, as a property manager I would support an owner who sought rental applicants that were nonsmokers. Of course, they should do this only after consulting with their own legal counsel.

I would also point out that the enforcement of the nonsmoking status of the rental unit is potentially problematic as tenants may change their habits or invite guests who are smokers.

However, even if the restrictions against smoking in the rental unit are essentially unenforceable, I would still feel that the landlords will generally derive an overall reduction in the damages to their rental units by designating their rental units for nonsmokers only.

Remember, it was not that long ago that smoking was freely allowed in airplanes and restaurants. I believe that the same trend toward nonsmoking
will soon be found in the rental housing industry.

Evicting rats

Q: I rent a home in Ocean Beach. I have notified my landlords, the homeowners, of a rat/mice infestation in the garage and walls of the home. For the past three months they have been setting traps in the garage and under the house. The problem is not going away.

They have told me that they are not going to hire an exterminator because, it wouldn't do any good. My concern is primarily a health issue for myself, my roommate and my pet dog that finds the traps, with mouse and rat carcasses enclosed.

There is rat feces on all tops of shelves and storage in the garage and shed areas of the house, who knows what is underneath it? What are my rights?

A: Kellman -- Regardless of what your landlord says, there are certainly better ways to take care of this problem than with the traps they are using. What your landlords are doing is the most economical (translated to mean cheap) way to handle the situation but not necessarily the best.

Under the law, they must take care of the problem. While, the law recognizes that you may be inconvenienced by home maintenance, you should not be made so uncomfortable as to affect your ability to live there.

Clearly, the traps are not working, which means some other method must be used. I think any reputable exterminator company will disagree with your landlord's statement that their work will not do any good. Contact one and get their advice, then you will know for sure how best to handle the situation.

Smith -- California landlords are required to satisfy minimum levels of habitability in the rental property -- this involves providing you with the essential services only. Not every defect or problem can be pinned on the landlord.

To settle the matter, I recommend that the landlord pay for the extermination. You'll need to cooperate by making the rental unit ready for
treatment.

Terms of agreement

Q: I am planning on renting out one room in my house for six months since I am leaving for out-of-state employment. Should the tenant and I sign some sort of rental agreement? If so, what terms and conditions would you
recommend so it would be legal.

A: Smith -- You have the legal right to rent the room in your house, but you need to be careful. Although a written rental agreement is not legally required, it is highly recommended. The rights and responsibilities should be clearly spelled out on the agreement.

Pay particular attention to that portion of the house that the tenant will be allowed to occupy. If the tenant needs to be evicted, California civil code allows for tenant removal -- similar to that for hotels -- if he or she fails to vacate the room after proper termination notice. It may not be necessary to resort to the formal unlawful detainer lawsuit.

Check with your legal adviser to confirm the availability of this procedure.

IF YOU'RE A TENANT OR LANDLORD, the authors stand ready to answer your questions in this column, although letters cannot be answered individually. Write them at: Rental Roundtable, Homes Section, San Diego Union-Tribune, P.O. Box 120191, San Diego, CA, 92112-0191. Or you may e-mail them at rgriswold.sdut@retodayradio.com

Copyright Union-Tribune Publishing Co.

Back to 2000 Rental Roundtable Index

Robert Griswold and the Real Estate Today! radio show strongly support the intent and the letter of all federal and state fair housing laws. As a reminder to all owners and managers of real estate, note that all real estate advertised is subject to the Federal Fair Housing Act, which makes it illegal to advertise "any preference, limitation, discrimination because of race, color, national origin or ancestry, religion, sex, physical disability, or familial status, or intention to make any such preference, limitation or discrimination." Additional state and/or local fair housing laws may also apply. Be sure to inform all persons that all dwellings offered or advertised are on an equal opportunity basis.

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Revised and Updated - Wednesday, April 26, 2006

Robert S. Griswold, CRE, CPM, CCIM, PCAM, GRI, ARM
Griswold Corporate Center
Griswold Real Estate Management, Inc.
5703 Oberlin Drive, Suite 300
San Diego, CA 92121-1743
Phone: (858) 597-6100
Fax: (858) 597-6161
Email: rgriswold.ret@retodayradio.com