Is it legal for a landlord to prohibit tenants from smoking in their units and/or other places on the premises? The answer to this question may well vary from state to state, although Federal considerations will be common to all.
In California, the answer to the question has been clarified by the passage of Senate Bill 332 (Padilla) which was signed into law by Governor Brown September 6, 2011. The core of the bill is this: “A landlord of a residential dwelling unit…may prohibit the smoking of a cigarette…or other tobacco product on the property or in the building or portion of the building, including any dwelling unit, other interior or exterior area, or the premises on which it is located…”
After January 1, 2012, if a landlord has such a prohibition in effect, “Every lease or rental agreement…shall include a provision that specifies the areas on the property where smoking is prohibited…”
Suppose the tenant already has a rental agreement or that the landlord has adopted a rule prior to 1/1/2012? The new rules must be communicated in a written “change of terms of tenancy” to be provided according to the requirements of other notices. As the senate bill analysis pointed out, “the length of the notice is important as resident smokers facing new prohibitions on smoking must be given adequate time to move, apply for a waiver…or quit the habit. California already requires a month’s notice for any modification of month-to-month leases.”
Was the new law necessary? A variety of legislative analyses noted that no current law prohibited landlords from enacting such a policy. Nonetheless, bill supporters such as the California Apartment Association noted that the lack of any law had created confusion and that it would be beneficial that a landlord’s right to do so be codified. The Association has stated that “smoking is a major source of conflict between smoking and non-smoking tenants.”
It is good that this matter has been clarified, however, in California at least, other questions remain: OK, landlords can ban the smoking of tobacco products, but what about other substances?
Ever-sensitive to the issues that face their members, the legal department of the California Association of Realtors® (CAR) has produced a memorandum entitled “Medical Marijuana Issues for Realtors®”. It’s not as clear as tobacco.
As a result of California’s “Compassionate Use Act” (a statewide initiative) and Senate Bill 420, The Medical Marijuana Program Act”, “…California laws which provide for criminal penalties…do not apply to persons such as a qualified patient, a person with a state-issued medical marijuana identification card, or a primary caregiver who act in accordance with the requirements of the Compassionate Care Act and SB420.”
Suffice it to say that an inordinate number of Californians meet the criteria for being a qualified patient.
On the other hand, the memo points out, “Marijuana possession, cultivation, processing, etc. are all illegal under federal law with no exceptions.”
So, what is a landlord to do? The CAR position is that, yes, a landlord can prohibit smoking (and possessing) marijuana. This is because, “Most leases, including the C.A.R. residential lease, prohibit the tenant from engaging in conduct that violates the law.” Moreover, the memo notes that a landlord who knowingly permitted illegal marijuana possession or use could expose his property to possible federal seizure.
Still, the discussion goes on to acknowledge that there could be practical problems in trying to enforce a prohibition through action such as eviction. “Even though a lease requirement to obey all laws seems to be a straightforward proposition, it is possible that a state court judge or jury may not view it as applying to a federal law violation. Certain areas have judges and juries which may not see it as their place to enforce federal law violations.”
No one said this was going to be easy.