Non-smoking lease provisions gain popularity

A trend toward non-smoking apartment buildings is growing, as reported in a recent New York Times article. In a cursory Craigslist search for apartments where smoking was permitted, only four were found in the five boroughs of New York City.

Though this research was conducted in New York City, this same trend is mirrored on the opposite side of the nation. On the West Coast, many California landlords have begun including a non-smoking addendum in their lease agreements, specifying the areas in which a tenant may smoke, all other areas being prohibited.

Reasons for smoking prohibitions are threefold:

• to protect the long-term health of tenants exposed to secondhand smoke;
• to safeguard the premises from fire and smoke related damage; and
• to limit disputes between neighboring tenants related to a smoking nuisance.

Thus far, smoking prohibitions do not seem to significantly impact apartment vacancies, stated Rapid Realty, a brokerage specializing in rental property. Landlords have little trouble finding tenants willing to sign lease agreements with non-smoking provisions. Smokers desirous of leasing non-smoking apartments simply smoke off of the property or hide their habit.

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In California, only 1 in 8 persons smoke – 12% of the population, and the rate is dropping. A higher tax would put an end to much of that, especially among the most vulnerable, our youth. At some point, homeowners’ association (HOA) covenants, conditions and restrictions (CC&Rs) will get into this game as well.

Though constrained living arrangements by way of a leasing agreement may be inconvenient for tenants who smoke, residential landlords have every right and, most of all, the responsibility to prohibit or limit smoking on leased multi-family property.

A residential landlord who fails to limit smoking to prevent negative health effects on other tenants through secondhand smoke breaches his duty of care and protection owed to his tenants. While California law does not require landlords to include a non-smoking provision in their lease, both firsthand and secondhand smoke are proven health risks, threatening tenant safety and exposing the landlord to liability claims. [Birke v. Oakwood Worldwide (2009) 169 CA4th 1540]

Related article:

June 2011 Forms

If a landlord is reluctant to ban smoking entirely for fear of scaring away prospective tenants, he may specify designated tenant smoking areas by including non-smoking provisions in the lease agreement. The upfront designation of these areas provides a space for tenants to smoke, yet also forewarns non-smoking tenants of the presence of secondhand smoke, allowing them to avoid exposure.

Since many smokers agree to non-smoking lease provisions then smoke anyway, offering the compromise of a designated smoking area may limit clandestine air pollution and property damage. By limiting smoking to common areas, rather than theoretically banning the practice entirely, landlords effectively serve non-smoking tenants as well.

To limit tenant smoking on the property, landlords may:

• activate this prohibition in the lease agreement by checking the non-smoking provision box when entering into the agreement [See first tuesday Form 550];
• serve tenants already in possession of the property under a month-to-month rental agreement or expired lease agreement with a 30-day Notice of Change in Rental Terms which includes a non-smoking provision [See first tuesday Form 570];or
• attach a Non-Smoking Addendum when preparing a lease agreement. [See first tuesday Form 563-1]

Related article:

Notice required to prohibit smoking in residential rentals

Re: “For Smoker, Extra Challenge in Apartment Hunt” from The New York Times