No-smoking Restriction Should Be Within the Law

06-Apr-1997 Sunday
(Page H-13 )

This column on issues confronting renters and landlords is written by Certified Property Manager Robert Griswold, host of KSDO Radio's "Real Estate Management Today!" (Saturdays, 2-4 p.m.) and by attorneys Steven R. Kellman, director of the Tenants' Legal Center, and Ted Smith, principal in a law firm representing landlords.

Q: I work in a university rental office and manage a duplex in Ocean Beach. Recently a landlord came in to the rental office and wanted to list a house for rent with the stipulation that no smoking take place in the unit or that it be occupied by nonsmokers. Is this legal? What are the laws on smoking in a rented house, condo or apartment?

A: Griswold: Yes, I believe it is legal to restrict rental property to nonsmokers. However, there are no specific laws in this area. Smokers are not "a protected class" like age, race, creed, color, gender, etc., and therefore I would contend that an owner could refuse to rent to a smoker as long as there is a reasonable business purpose in establishing such a policy. The business purpose will most likely be that smoking in the rental can cause damage and additional wear and tear. Cleanup costs for carpets, window coverings, repainting, etc., are higher. Insurance premiums might even be higher. Ted Smith and I often debate this question, with Ted taking the stance that my answer is probably correct, but . . . (and here's a typical attorney disclaimer) since the issue has not clearly been resolved by the Legislature or courts, the owner could run the risk of an expensive legal challenge is not worth the risk. I noticed an important distinction in the way you presented your question (or the way the owner asked you to list the unit). That is, the owner wanted no smoking in the unit or a nonsmoker. Therefore, Ted's concerns are minimized even further since the owner is not refusing to rent to all smokers. In other facets of daily life, such as hotel, airline and car-rental bookings, there are rules that address the behavior and not the person. Personally I would have no trouble taking this rental listing.

Q: My tenant recently moved out at the end of the lease. I made a quick walk-through of the rental unit and things seemed to be fine, so I immediately returned the entire security deposit. A week later when I went through the unit more carefully, I found that the oven, garbage disposal and dishwasher were broken by the tenant's negligence. Can I recover the cost of repairing these items?

A: Smith: You were a little quick on the deposit return. As you may know, California law allows you 21 days after the tenant vacates to return the deposit. I believe you can still sue the tenant for the undiscovered damages, but you'll have a tough row to hoe.

Rental Roundtable takes to the air
Rental Roundtable's trio of authors move to the radio Saturday when they will broadcast live on KSDO's "Real Estate Management Today!" "Real Estate Management Today!" host Robert S. Griswold and attorneys Steven Kellman and Ted Smith will take phoned-in questions on the show from 2 to 4 p.m. on AM 1130.

In their Rental Roundtable feature appearing in the Sunday Homes section, the trio answer questions on tenant and landlord issues. On the radio, they'll answer mailed-in questions from Homes section readers as well as take questions from KSDO listeners. During the program, the number to call with questions is (619) 560-1130.

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 to them at: Rental Roundtable, Homes Section, San Diego Union-Tribune, P.O. Box 191, San Diego, CA 92112. Or you may e-mail them at rgriswold@retodayradio.com

Back to 1997 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