Form-of-the-week: Non-Smoking Addendum – Form 563-1

Consider a non-smoking family who leases a unit in an apartment complex. Smoking is banned in all indoor units, but is allowed in common areas such as around the pool and playground areas.

A child in the family suffers from respiratory distress caused by asthma and allergies. These physical conditions are aggravated by secondhand smoke when using the facilities in the common areas. The family requests the landlord eliminate smoking in the common areas by tenants and guests, which the landlord rejects.

The family claims the secondhand smoke constitutes a private nuisance and the landlord has a responsibility to prevent the harmful smoke since a residential landlord’s duty of care requires them to maintain the premises in a reasonably safe condition.

Did the landlord breach their duty of care owed to the family?

Yes! The landlord’s failure to limit smoking to prevent it from adversely affecting users of the common areas, including the child of the family, was a breach of their duty of care. Landlords have a duty to maintain the entirety of a premises in a reasonably safe condition for the tenants’ intended use. [Birke v. Oakwood Worldwide (2009) 169 CA4th 1540]

Landlord’s right to avoid lawsuits

Every landlord has a duty to ensure the housing they rent remains safe and sanitary. Additionally, a landlord has a duty to protect their tenants from foreseeable dangers.

Since environmental tobacco smoke (ETS) poses a governmentally recognized danger to tenants, a wise landlord takes steps to avoid claims. [Stoiber v. Honeychuck (1980) 101 CA3d 903; Calif. Code of Civil Procedure §1174.2]

A landlord may do any of the following risk avoidance activities to alleviate the burden of future ETS disputes:

  • relocate non-smokers so they are not affected by the ETS of smoking tenants;
  • relocate smokers so they will not affect non-smokers; or
  • refuse to rent to persons who will not agree to the non-smoking provisions contained in or attached to the rental or lease agreement.

Alternatively, the landlord may:

  • designate all of the property as smoke-free, with the exception of any clearly defined areas from which smoking will not affect others by amending existing rental agreements or expired lease agreements; [See first tuesday Form 563-1] and
  • enforce no smoking as part of the rules and policies of occupancy of the property through a “property policies” provision in the rental or lease agreement, then serve tenants who breach the no-smoking rule with a 3-day notice perform (do not smoke) or quit (vacate). [See first tuesday Form 576]

The above policies can be agreed upon by the landlord and tenant when entering into a rental or lease agreement by the use of use of a Non-Smoking Addendum. The Non-Smoking Addendum either prohibits smoking on the entire premises, or notes the specific location on the property where smoking is permitted. [See first tuesday Form 563-1 §3]

A non-smoking policy cannot be imposed on tenants under an existing fixed-term lease until renewal of the lease is negotiated, at which point the addendum may be attached. The use of a property policies provision in a lease agreement is another method for changing the rules on tenants under a fixed-term lease.

However, tenants in possession under a month-to-month (periodic) rental agreement or an expired lease agreement can be given a 30-day Notice of Change in Rental Terms which would include the non-smoking provision as the change. [See first tuesday Form 570 §7]

The tenant receiving a 30-day Notice of Change in Rental Terms does not need to sign a non-smoking addendum. The tenant, by remaining in possession and not giving notice to vacate, has thus agreed to the non-smoking provision. The no-smoking condition is enforceable on the running of 30 days from delivery of the notice.

The argument that smokers have the right to smoke is not valid. Smoking is not a protected privacy interest under the United States Constitution. Further, smokers are not a protected group of people covered by equal protection clauses in the United States or California constitutions since they can change their habits.

Related article: Non-smoking lease provisions gain popularity

In California, smoking is increasingly considered antisocial behavior, unacceptable and proven dangerous. A landlord may very well see their tenants – and income – go up in smoke if they do not take steps to mitigate the exposure of tenants to tobacco smoke.