Issue of Smoking Ban in Rental Properties is a Real
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.
QUESTION: I enjoy your column and was very intrigued by your recent
discussion of the controversy surrounding a landlord's ability to
designate certain rental units as nonsmoking. I would like additional
feedback about banning smoking in the common areas of our apartment
complex. Can this be enforced?
ANSWER: Smith: The smoking issue has made its way into the
landlord/tenant arena, encompassing housing, constitutional and health
issues. California tenants advance the tenet that they have the right
to smoke in their home.
However, there is substantial evidence that cigarette smoke causes
abnormal wear and tear to drapes, carpet and the apartment in general.
This smoke-related wear and tear causes real expense to landlords.
In addition, the landlord's liability for secondary smoke to adjacent
residents is a real hot potato. It is for these reasons that the
landlord advocates suggest it is legal to restrict smoking in their
Smokers do not appear to be a protected class under either the
California or federal constitutions. At this juncture, there is no
case in California answering this question.
I believe that California landlords do have the right to prohibit
smoking in their residential rentals. It is likely that the Supreme
Court will be called on to determine this issue in the future.
Q: I live in a large garden apartment complex and just discovered they
have a policy for moving out that was not disclosed in the original
lease. It is quite onerous and states that you must clean all the
windows (inside and out), blinds, move the stove and refrigerator and
clean underneath. They even expect me to clean the inside of the
dishwasher! If you don't comply to their satisfaction they deduct $200
from your deposit. Can they legally force these stipulations?
A: Griswold: If the rental unit was cleaned to those standards when
you moved in, then they can require you to leave the unit in the same
or better condition. Section 1950.5 of the California Civil Code
states that the landlord can lawfully deduct from the security deposit
for any cleaning, if necessary.
Even attorney Steve Kellman of The Tenants Legal Center states that
any dirt brought in or occurring during the tenant's tenancy
(regardless of source) is the full responsibility of the tenant to
clean or remove prior to vacating the premises. Thus, as long as the
unit was thoroughly cleaned when you moved in then the landlord has
the right to require the same upon your departure.
If it was not cleaned to this standard then you would have to be able
to prove that -- for example, if you noted on your move-in checklist
that the unit was not clean or some other written documentation
contemporaneous to your move-in.
Typically, the tenant would have the burden of proof to show that the
unit was not clean. As far as the $200 charge, the landlord should
only charge exactly what their actual costs are to clean the unit. So
if you did everything they require but you forgot to clean under the
refrigerator, then they should only charge you for that specific item,
which clearly should not be $200.
Q: My daughter's La Jolla apartment does not have a heater. The
landlord removed the old radiator and told her to use the old-style
gas stove as a heater. The stove is not in the best working condition.
All utilities are included in her rent. We all recognize how dangerous
this is. What can she do to get a heater for her apartment?
A: Kellman: Your daughter is entitled by law to have adequate heat
from a safe source in her rental unit. Clearly, using a stove as a
heater is inappropriate and dangerous. Also, such
"old-style" gas stoves are not protected with modern safety
systems regarding fire prevention or safe venting of gasses.
Your daughter should make a written request that the landlord provide
her rental unit with a safe heating system. If the landlord will not
make the renovations it would take to install a heating system, your
daughter may ask to be supplied with appropriate space heaters to do
If these are to be used, the oil filled radiating types are pretty
effective and pose much less of a hazard than heated coil type units.
If her request is refused, she may buy space heaters herself and ask
that the cost be deducted from the rent.
If that request is denied, she may choose to simply absorb the cost
and keep the heaters or leave them for the next tenant and seek
reimbursement in the small claims court. If the landlord tries to
evict her as a response to her requests for heating, the attempted
eviction should be considered retaliatory and thus illegal.
Repairing the heating system and deducting the cost from the rent or
simply withholding rent are also options, but they should not be
attempted without obtaining advice from an attorney.
Q: I can't look at my carpet for another day! "Puke yellow"
may have been the color of choice for carpet back in the 1970s, but
not anymore. Although there is otherwise little that is materially
wrong with that carpet (aside from ordinary wear) in my current rental
house, isn't there a maximum lifespan for this carpet?
What does the carpet industry generally say about that? What, if
anything, does the law say about how long the same carpet should
A: Griswold: I am not a carpet industry expert, but as a property
manager I know that the carpet must be replaced only when it creates a
health and safety hazard. Thus, the fact that the carpet is "puke
yellow" is an aesthetic issue only and the owner is not legally
obligated to replace it.
Of course, a reasonable and prudent owner will keep their rental units
current and looking good or risk losing tenants and not being able to
attract the most qualified replacement tenants for a competitive rent.
You should notify your owner if the carpet begins to deteriorate or
delaminate or the tack strip is coming through the carpet.
Delamination occurs when the carpet backing begins to separate from
the knap of the carpet. At that point, I believe that the owner would
be required to replace the carpet as it constitutes a health and
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 firstname.lastname@example.org
2001 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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