Landlord/Tenant Issues: Banning Smoking for Residential Tenants

If you are a landlord and you want to make your building a non-smoking building, then you can thanks to a new California law in effect January 1, 2012. However, if your leases currently allow smoking in certain areas of the property then you may have a problem. The new law makes clear the owner’s right to limit smoking in units, but also makes clear that an existing right to smoke is a material provision of the rental agreement, whether it is stated as material or not.

For new tenants, the lease or rental agreement should specify the areas on the property where smoking is prohibited. For existing tenants, a ban on smoking cigarettes or other tobacco products in any part of the property in which smoking was previously allowed does constitute a change of the terms of the tenancy, which requires adequate notice in writing. Therefore, tenants on a month to month rental agreement can be given 30 days’ notice of the smoking ban.

If existing tenants are under a longer term tenancy, then the parties would need to enter into a new agreement on expiration of the existing agreement or modify the existing agreement in writing. It is clear, now landlords have legislative authority to ban smoking if they choose to. This ban can decrease the risk of accidental fires and can even reduce fire insurance premiums. 

Landlord/Tenant Issues: Sale of the Property and Terminating the Tenancy

Many homeowners are in the process of short selling their property. This is of particular concern for tenants living in a home that is the subject of the short sale. Many landlord/owners will simply give the tenant a 30-day notice to vacate. Usually this 30-day notice is perfectly fine if the landlord has contracted to sell the unit to a purchaser and has established an escrow with a licensed escrow agent or licensed estate broker; the purchaser is a person (not a company); and the purchaser in good faith intends to reside in the property for at least one year after termination of the tenancy. The notice must also be given to the tenant no more than 120 days after the escrow has been established.

However, California law does require that a residential non-fixed term tenant be given at least 60 days’ notice of termination if the tenant has resided in the property for at least one year. If the tenancy is not terminated when the property is sold, the new owner becomes the new landlord. The new landlord retains all of the previous landlord’s rights under the rental agreement. Therefore, new landlord/owners may serve a 30/60 day notice to terminate the tenancies created with the previous landlord. The new landlord/owner can also pursue an eviction action based on 30/60 day notice served by the previous landlord prior to sale.

As for foreclosed upon property, a tenant has the rights under the lease entered into before the notice of foreclosure to occupy the premises until the end of the remaining lease term. However, the successor in interest may terminate the lease effective on the date of the sale to a purchaser who will occupy the unit as a primary residence, subject to a 90-day notice.

Whether the new owner purchased the property through a voluntary sale by the previous owner, or whether the property was foreclosed upon, California law provides tenants with protections.

Landlord/Tenant Issues: Too Many People in One Unit

Imagine you are a law abiding landlord with a vacancy and a potential renter fills out your application form. The vacancy is for a two bedroom, one bathroom, and one half bathroom unit. You read over the application and are astounded to find out that the potential tenant is requesting eight people live in the unit with her. You feel like that is too many people and want to reject the application, but you still want to be a legally responsible landlord.

There is actually no legal formula for the amount of people that can live in one unit. You as the landlord can take a safety approach, and reject the application because it just wouldn’t be a safe living condition to have eight people living in a two bedroom unit. As long as you are not practicing illegal discrimination, you can set a limit on the amount of people living in the unit. However, that number must be a reasonable number.

The best thing to do is limit your occupancy to whatever number the government has set for a comparable unit. The FHA authorizes federal, state or local restrictions regarding the maximum number of occupants permitted to occupy rental units. Enforcement of reasonable occupancy limit laws does not amount to discrimination based on familial status. Just make sure to apply it uniformly without regard to family composition. As a guide, the FHA policy is that occupancy of two persons per bedroom is presumptively reasonable and not unlawful discrimination.

The Los Angeles Municipal Code makes it unlawful to refuse to rent to or discriminate against any person based on age, parenthood, pregnancy or the potential or actual tenancy of a minor child; or to include a provision in the rental or lease agreement that the tenant shall remain childless, shall not bear children or shall not maintain a household with a person of a certain age.

Check your local ordinances to make sure you are not violating the law and acting discriminatorily.