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Q&A: What steps can I take if my tenant is smoking in their unit and my lease prohibits smoking?


It is not uncommon for second-hand smoke coming from a rental unit to bother neighbors, particularly those with minor children. Also, smoking may actually damage the inside of the rental unit. For these reasons, many California leases prohibit smoking. In fact, some local laws, like in Berkeley, for instance, prohibit smoking in apartment houses altogether.


Lease provisions prohibiting smoking are generally enforceable. If a tenant is smoking and the lease prohibits it, then the landlord may take steps to get the tenant to stop, including evicting the tenant if necessary. State and local eviction control laws allow evictions based on nuisance and lease violations. While there may be certain notice and procedural requirements, a landlord may generally commence eviction proceedings against tenants violating smoking prohibitions or creating nuisances.


Notwithstanding the above, it is important to note, however, that local COVID-19 eviction moratoriums that remain in effect may limit such evictions. For instance, Oakland has a moratorium still in effect that would prohibit such an eviction unless the tenant’s conduct created an imminent threat to the health and safety of others. So be sure to familiarize yourself with state and local eviction control laws as well as any COVID-19 eviction moratoriums.


Finally, if the tenant is smoking marijuana for medicinal purposes, then Fair Housing laws may require the landlord to allow it in the rental unit even though the lease may prohibit it. This is because landlords must reasonably accommodate tenants with disabilities.


This article was originally published in the Fall 2022 issue of RENT Magazine, a publication of the American Apartment Owners Association (AAOA) . You can view the original online here:

https://learn.american-apartment-owners-association.org/link/995027/

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