OK, this image is a bit of an exaggeration but I think we have all experienced the resulting affects of excessive smoking inside rental units. Smoke can get in the paint, the carpet, the ducting, pretty much everywhere.  The largest challenge we find is to transition from a smoking rental unit into a sensitive non-smoking individual or family.  It is a comprehensive cleaning and often painting which takes additional time and money.  

Governor Brown has signed SB 332 (Padilla – Los Angeles), which specifically authorizes rental property owners to prohibit the smoking of a cigarette or other tobacco product by anyone on the property or in any building or portion of the building, including any dwelling unit, other interior or exterior area, or the premises on which it is located.

The new law requires that every lease or rental agreement entered into on or after January 1, 2012, for a residential dwelling unit on property in any portion of which the landlord has prohibited the smoking of cigarettes or other tobacco products must include a provision that specifies the areas on the property where smoking is prohibited, if the lessee has not previously occupied the dwelling unit.

For a lease or rental agreement entered into before January 1, 2012, a prohibition against the smoking of cigarettes or other tobacco products in any portion of the property in which smoking was previously permitted constitutes a change of the terms of tenancy, and the landlord must provide written notice to the affected tenants.

There are many local laws that prohibit individuals from smoking tobacco at public and private property. This state law does not preempt those local laws.

For more information and background on this subject, see CAA’s White Paper onTobacco Smoking at Residential Rental Properties

Here is a good entry from the Buildium Blog, (authored by Colin McCarthy, J.D. of Robinson & Wood in San Jose, CA) which Neighborhood Property Management regularly monitors for content we think would be useful to our income property owning clients. 

When can a resident sue? Or saying the same thing differently as us lawyers like to do: When can the landlord be sued?  When there is a lawsuit, what does the plaintiff (the party suing) have to prove to recover?  What does the landlord have to disprove to defend against such suits?

In California, a tenant will be able to successfully sue the landlord for negligently caused harm sustained on the property if she proves four different facts.  If you are clever and were paying attention you’d know that I just told you the four facts in the proceeding sentence.  There are some variations but in essence, the tenant plaintiff will have to prove:

1. That the defendant owned or leased or occupied or controlled the property on which she was harmed;
2. That the defendant “was negligent” with respect to the property’s use or how it was maintained;
3. That the plaintiff sustained an injury or property damage; and
4. That the “defendant’s negligence” was a legal cause of that injury or property damage.

If the plaintiff proves all four, she wins.  The plaintiff does not have to be a tenant to sue.  Anyone who is injured on the property – with certain exceptions not applicable in a residential setting – can sue the owner.  So if the tenant has a guest over, and the guest injures himself on a broken faucet, the guest can sue.  He can sue the tenant (see #1 above “leased” or “occupied”), and/or the landlord (#1 above “owned” and “controlled”).

After the plaintiff figures out who leased/occupied/owned and/or controlled the premises on which she was injured, she next has to show “negligence.”*  That basically means showing that the defendant was not being careful with respect to the property.  

Just because a lessor/occupier/owner/controller was negligent does not mean that the plaintiff prevails.  The plaintiff still has to show that the negligence contributed to her injuries such as to impose legal liability for the same.  One can be negligent, but if does not harm anyone, there is no liability.

This blog submission is only for purposes of disseminating information.  It does not constitute legal advice.  The statements in this blog submissions do not necessarily reflect the opinions of Robinson & Wood, Inc. or its clients.  No attorney-client relationship is formed by virtue of reading this blog entry or submitting a comment thereto.  If you need legal advice, please hire a licensed attorney in your state.

Here is an excellent resource of questions and answers put out by the San Diego Law Firm Kimball, Tirey & St. John, LLP on Pet Policies among other common issues.

Question: My tenant who moved in 3 months ago with a one year lease, has just informed me that she is moving out. What type of notice needs to be served?

Answer: There is nothing that you are legally required to send her at this time, but it is a good idea to send her a letter reminding her that she is responsible for the rent until the lease expires or the premises are relet, whichever occurs first.

Question: Is a new owner subject to the pet policy of a previous owner with month-to-month agreements?

Answer: Yes, but the terms of a month-to-month agreement can be changed by properly serving a 30-day notice of change of terms of tenancy on the tenant.

Question: We have a vacancy because the tenant committed suicide. Do we have to inform new tenants of this fact?

Answer: You have to inform all prospective tenants interested in that unit that there was a death within the last three years. You also need to state the cause of death.

Question: What is the best way to handle the 31-day month? When a tenant moves in mid-month, is it best to prorate the remaining days until the 31st or is it best to ignore the 31st day and consider all months to be 30 days?

Answer: There is no specific law on point so if your lease doesn’t address this issue, most judges use a 30-day month to calculate daily rent notwithstanding the number of days in the month.

Question: We have a tenant who has been incarcerated. Her aunt is coming by to remove her personal belongings from the unit before the tenant’s 30-day notice expires. Does the tenant still owe rent for the remainder of the days left on the notice to vacate even though the unit key has been returned to us?

Answer: Yes, unless you are able to relet the premises before then.

Question: Can I require all overnight guests to register in the office?

Answer: Some judges may consider this an unreasonable invasion of the tenant’s right of privacy. It is so far untested in our courts.

Question: What should I do if I suspect drugs are being sold out of one of our apartments?

Answer: Call the police and report the incident. Ask the police for further direction. Document all of the calls and what you said, did and observed. If you can prove illegal activity, commence an unlawful detainer action.

Question: If a resident dies and we discover the body, should we call the police first or a family member?

Answer: Call the police and give them the names and addresses of the family members. Wait for further instructions from the police.

Question: What happens if we rent to someone who is under 18 and is not an emancipated minor? 
Answer: The lease is void because the tenant did not have legal capacity to legally enter into the agreement.

Question: Where do I get the lead paint pamphlets?

Answer: The California Apartment Association or one of its local affiliates, the office of HUD, or the Environmental Protection Services (EPA) has pamphlets available.

Question: Can I serve both a 3-day notice to perform covenant and a 30-day notice at the same time?

Answer: Yes, so long as the 3-day notice provides that the tenant can either perform the broken covenant or quit possession of the premises within the three days.

Question: Could we be held liable if a child drowns in our pool? We have it fenced in but parents do not always watch their kids.

Answer: Yes, but only if you were found to be negligent in the design, construction or operation of the swimming pool. Your standard of care is what a reasonably prudent apartment owner or operator would have done in similar circumstances.

Question: What is a prejudgment claim? When should it be used?

Answer: A prejudgment claim is a document that can be filed along with the summons and complaint for unlawful detainer. It requires that all persons who are claiming a right of possession to the subject property to file a response and they will then be added as additional parties (defendants) to the eviction lawsuit.

Question: What kinds of changes to the rental agreement require the "change of terms" notice?

Answer: Any material change to a month-to-month tenancy requires a written 30-day notice of change of terms of tenancy. It may be served personally, by post and mail, or substituted service and mail.

Question: If we are going to spray for ants around and in the building, do we have to give the tenants any kind of notice?

Answer: If the service is ongoing pursuant to a pest control contract, you must give each new resident a copy of the initial notice the contractor provided to all the tenants. This notice warns the tenants about the chemicals contained in the pest control. If any modifications are made, the pest control company must provide new notices.

© 2011 Kimball, Tirey and St. John LLP