Tenant has Few Clearly Defined Rights as a
Robert S. Griswold | Steven R. Kellman | Ted Smith
This column on issues confronting renters and
landlords is written by Counselor of Real Estate and
Certified Property Manager Robert Griswold, host of Real
Estate Today! with Robert Griswold (10 a.m.
Saturdays on AM1130 - KSDO radio, or on the Internet
and by attorneys Steven R. Kellman, director of the
Tenants' Legal Center, and Ted Smith, principal in a law
firm representing landlords.
Q: I am a nonsmoker. Recently, a tenant moved in downstairs. His
comes into my apartment -- I assume through the furnace. It seems like
is in my apartment smoking. I get headaches and have had a difficult
breathing. Can I do anything?
A: Smith -- You bring up an important question which, quite frankly,
settled and is a topic of continuing legal debate in California. The
landlord recognizes that he must be nondiscriminatory in his rentals.
Still, no California law authorizes a no-smokers policy in apartment
It is for this reason that most landlords believe that if they
restrict occupancy to nonsmokers, they will be inviting litigation to
determine whether this is constitutional.
There's a difference between a person's home and the airplane or
restaurant environment. In his own home, a person has the right to
privacy which, the argument goes, includes smoking, despite all the
medical data. For the landlord to abridge that right may be unlawful.
Still, secondary smoke can be insidious. Individuals have filed suits
under the Americans with Disabilities Act for their abnormal reaction
to secondary smoke based on the concept of chemical sensitivity
You would have to be clinically diagnosed with this malady before
proceeding along these lines, and it would be your burden of proof.
Some landlords in the vanguard have created nonsmoking units, but the
vast majority of rental owners have continued to maintain an open
policy toward smokers and nonsmokers alike.
Griswold -- It has been my personal observation over the last 20 years
of managing apartments that smoke causes increased damages and wear
and tear on the rental unit. While I agree that individuals may have a
constitutional right to smoke in their own home, I believe that
landlords have a very real and practical business reason to restrict
the use of their rental units to nonsmokers.
Thus, as a property manager I would support an owner who sought rental
applicants that were nonsmokers. Of course, they should do this only
after consulting with their own legal counsel.
I would also point out that the enforcement of the nonsmoking status
of the rental unit is potentially problematic as tenants may change
their habits or invite guests who are smokers.
However, even if the restrictions against smoking in the rental unit
are essentially unenforceable, I would still feel that the landlords
will generally derive an overall reduction in the damages to their
rental units by designating their rental units for nonsmokers only.
Remember, it was not that long ago that smoking was freely allowed in
airplanes and restaurants. I believe that the same trend toward
will soon be found in the rental housing industry.
Q: I rent a home in Ocean Beach. I have notified my landlords, the
homeowners, of a rat/mice infestation in the garage and walls of the
home. For the past three months they have been setting traps in the
garage and under the house. The problem is not going away.
They have told me that they are not going to hire an exterminator
because, it wouldn't do any good. My concern is primarily a health
issue for myself, my roommate and my pet dog that finds the traps,
with mouse and rat carcasses enclosed.
There is rat feces on all tops of shelves and storage in the garage
and shed areas of the house, who knows what is underneath it? What are
A: Kellman -- Regardless of what your landlord says, there are
certainly better ways to take care of this problem than with the traps
they are using. What your landlords are doing is the most economical
(translated to mean cheap) way to handle the situation but not
necessarily the best.
Under the law, they must take care of the problem. While, the law
recognizes that you may be inconvenienced by home maintenance, you
should not be made so uncomfortable as to affect your ability to live
Clearly, the traps are not working, which means some other method must
be used. I think any reputable exterminator company will disagree with
your landlord's statement that their work will not do any good.
Contact one and get their advice, then you will know for sure how best
to handle the situation.
Smith -- California landlords are required to satisfy minimum levels
of habitability in the rental property -- this involves providing you
with the essential services only. Not every defect or problem can be
pinned on the landlord.
To settle the matter, I recommend that the landlord pay for the
extermination. You'll need to cooperate by making the rental unit
Terms of agreement
Q: I am planning on renting out one room in my house for six months
since I am leaving for out-of-state employment. Should the tenant and
I sign some sort of rental agreement? If so, what terms and conditions
recommend so it would be legal.
A: Smith -- You have the legal right to rent the room in your house,
but you need to be careful. Although a written rental agreement is not
legally required, it is highly recommended. The rights and
responsibilities should be clearly spelled out on the agreement.
Pay particular attention to that portion of the house that the tenant
will be allowed to occupy. If the tenant needs to be evicted,
California civil code allows for tenant removal -- similar to that for
hotels -- if he or she fails to vacate the room after proper
termination notice. It may not be necessary to resort to the formal
unlawful detainer lawsuit.
Check with your legal adviser to confirm the availability of this
YOU'RE A TENANT OR LANDLORD, the authors stand ready to
answer your questions in this column, although letters
cannot be answered individually. Write them at: Rental
Roundtable, Homes Section, San Diego Union-Tribune, P.O.
Box 120191, San Diego, CA, 92112-0191. Or you may e-mail
them at email@example.com
2000 Rental Roundtable
Robert Griswold and the Real Estate
Today! radio show strongly support the intent and the letter of all federal and
state fair housing laws. As a reminder to all owners and managers of real
estate, note that all real estate advertised is subject to the Federal Fair
Housing Act, which makes it illegal to advertise "any preference,
limitation, discrimination because of race, color, national origin or ancestry, religion, sex,
physical disability, or familial status, or intention to make any such
preference, limitation or discrimination." Additional state and/or local
fair housing laws may also apply. Be sure to inform all persons that all
dwellings offered or advertised are on an equal opportunity basis.
Revised and Updated -
Wednesday, April 26, 2006
Robert S. Griswold, CRE, CPM, CCIM,
PCAM, GRI, ARM
Griswold Corporate Center
Griswold Real Estate Management, Inc.
5703 Oberlin Drive, Suite 300
San Diego, CA 92121-1743
Phone: (858) 597-6100
Fax: (858) 597-6161
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