Issue of Smoking Ban in Rental Properties is a Real Hot Potato

Robert S. Griswold | Steven R. Kellman | Ted Smith
14-January-2001 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.

QUESTION: I enjoy your column and was very intrigued by your recent discussion of the controversy surrounding a landlord's ability to designate certain rental units as nonsmoking. I would like additional feedback about banning smoking in the common areas of our apartment complex. Can this be enforced?

ANSWER: Smith: The smoking issue has made its way into the landlord/tenant arena, encompassing housing, constitutional and health issues. California tenants advance the tenet that they have the right to smoke in their home.

However, there is substantial evidence that cigarette smoke causes abnormal wear and tear to drapes, carpet and the apartment in general. This smoke-related wear and tear causes real expense to landlords.

In addition, the landlord's liability for secondary smoke to adjacent residents is a real hot potato. It is for these reasons that the landlord advocates suggest it is legal to restrict smoking in their residential apartments.

Smokers do not appear to be a protected class under either the California or federal constitutions. At this juncture, there is no case in California answering this question.

I believe that California landlords do have the right to prohibit smoking in their residential rentals. It is likely that the Supreme Court will be called on to determine this issue in the future.

Clean machine

Q: I live in a large garden apartment complex and just discovered they have a policy for moving out that was not disclosed in the original lease. It is quite onerous and states that you must clean all the windows (inside and out), blinds, move the stove and refrigerator and clean underneath. They even expect me to clean the inside of the dishwasher! If you don't comply to their satisfaction they deduct $200 from your deposit. Can they legally force these stipulations?

A: Griswold: If the rental unit was cleaned to those standards when you moved in, then they can require you to leave the unit in the same or better condition. Section 1950.5 of the California Civil Code states that the landlord can lawfully deduct from the security deposit for any cleaning, if necessary.

Even attorney Steve Kellman of The Tenants Legal Center states that any dirt brought in or occurring during the tenant's tenancy (regardless of source) is the full responsibility of the tenant to clean or remove prior to vacating the premises. Thus, as long as the unit was thoroughly cleaned when you moved in then the landlord has the right to require the same upon your departure.

If it was not cleaned to this standard then you would have to be able to prove that -- for example, if you noted on your move-in checklist that the unit was not clean or some other written documentation contemporaneous to your move-in.

Typically, the tenant would have the burden of proof to show that the unit was not clean. As far as the $200 charge, the landlord should only charge exactly what their actual costs are to clean the unit. So if you did everything they require but you forgot to clean under the refrigerator, then they should only charge you for that specific item, which clearly should not be $200.

Heating up

Q: My daughter's La Jolla apartment does not have a heater. The landlord removed the old radiator and told her to use the old-style gas stove as a heater. The stove is not in the best working condition. All utilities are included in her rent. We all recognize how dangerous this is. What can she do to get a heater for her apartment?

A: Kellman: Your daughter is entitled by law to have adequate heat from a safe source in her rental unit. Clearly, using a stove as a heater is inappropriate and dangerous. Also, such "old-style" gas stoves are not protected with modern safety systems regarding fire prevention or safe venting of gasses.

Your daughter should make a written request that the landlord provide her rental unit with a safe heating system. If the landlord will not make the renovations it would take to install a heating system, your daughter may ask to be supplied with appropriate space heaters to do the job.

If these are to be used, the oil filled radiating types are pretty effective and pose much less of a hazard than heated coil type units. If her request is refused, she may buy space heaters herself and ask that the cost be deducted from the rent.

If that request is denied, she may choose to simply absorb the cost and keep the heaters or leave them for the next tenant and seek reimbursement in the small claims court. If the landlord tries to evict her as a response to her requests for heating, the attempted eviction should be considered retaliatory and thus illegal.

Repairing the heating system and deducting the cost from the rent or simply withholding rent are also options, but they should not be attempted without obtaining advice from an attorney.

Sickening carpet

Q: I can't look at my carpet for another day! "Puke yellow" may have been the color of choice for carpet back in the 1970s, but not anymore. Although there is otherwise little that is materially wrong with that carpet (aside from ordinary wear) in my current rental house, isn't there a maximum lifespan for this carpet?

What does the carpet industry generally say about that? What, if anything, does the law say about how long the same carpet should remain?

A: Griswold: I am not a carpet industry expert, but as a property manager I know that the carpet must be replaced only when it creates a health and safety hazard. Thus, the fact that the carpet is "puke yellow" is an aesthetic issue only and the owner is not legally obligated to replace it.

Of course, a reasonable and prudent owner will keep their rental units current and looking good or risk losing tenants and not being able to attract the most qualified replacement tenants for a competitive rent. You should notify your owner if the carpet begins to deteriorate or delaminate or the tack strip is coming through the carpet.

Delamination occurs when the carpet backing begins to separate from the knap of the carpet. At that point, I believe that the owner would be required to replace the carpet as it constitutes a health and safety hazard.

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 2001 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.

FHEO Logo

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