Does a landlord have a legal right to prohibit prospective tenants from smoking inside or around the rented premises?  The answer is “yes”, if the restriction is spelled out in the rental contract with the tenant. 

Cigarettes/E-Cigarettes

California has enacted a statute allowing landlords of residential dwelling units to prohibit smoking of cigarettes or other tobacco products on the property or in any building or portion of the building. (Cal. Civ. Code section 1947.5.)  The prohibition needs to be expressly stated in the rental contract, along with a provision that specifies the areas on the property where smoking is prohibited, if the lessee has not previously occupied the dwelling unit.

E-cigarettes have recently been added to the California tobacco products definition. (Cal. Bus. & Prof. Code section 22950.5(d)(1)(b).)  Accordingly, all laws that apply to cigarettes or other tobacco products now apply to e-cigarettes, including the landlord’s ability to prohibit their use on the property.

If the lease does not explicitly address smoking, there are other potential theories which can be invoked to prevent smoking by a tenant.  Even if the lease is silent on smoking, a landlord can still pursue a nuisance eviction against the tenant.  This would required the landlord to plead and prove smoking causes a substantial interference with the comfort, safety or enjoyment of the landlord or tenants in the building, and the activities are severe, continuing or recurring in nature, and the nature of such nuisance, damage or interference. Id. Also, neighboring tenants affected by smoke could pursue a private nuisance claim against the smoking tenant. (Cal.Civil Code section 3479.)

Marijuana

California medical marijuana laws directly conflict with federal law, which makes the law murky for tenants in California who require the use of medical marijuana and want to request a reasonable accommodation from their landlord. Using and possessing marijuana for any purpose (including medical reasons) is illegal under federal law. Because it is a banned substance, using it anywhere—even in the privacy of your rental unit—exposes the tenant to the possibility (even if remote) of being charged with a federal crime.  Its also possible to invoke an “illegal activities” clause in a lease to prohibit marijuana smoking on the premises. 

The Eviction Process

Landlords can evict smokers who violate a non-smoking provision in their lease, just like any other breach of the lease. The landlord can serve a three-day notice to “cure or quit” to the smoking tenant. If the tenant does not stop the lease violation in a timely manner, the landlord may proceed with a second, unconditional three day notice to quit, followed by an eviction lawsuit in court against the tenant.

Please contact Lynx Legal with any questions regarding the above, and for all your eviction needs.  We can be reached at 888-441-2355, or [email protected].  Our experienced professionals are standing by to answer any inquiries or complete the intake if you are ready to start a case.