Smoking in an Apartment Building

Can landlords prohibit tenants from smoking cigarettes?

Yes. Landlords have the right to prohibit smoking of cigarettes or other tobacco products in and around a rental property as long as it is written into the lease agreement. CAL. CIV. CODE § 1947.5. Many leases ban smoking of any kind, including cigarettes, e-cigarettes, and marijuana.

E-cigarettes have recently been added to the California tobacco products definition. CAL. BUS. & PROF. CODE § 22950.5(d)(1)(b). Use of these types of cigarettes is often called “vaping”, and while they do not produce smoke, they do produce a vapor that contains several chemicals, the long-term effects of which are not yet known. All laws that apply to cigarettes or other tobacco products now apply to e-cigarettes, including the landlord’s ability to prohibit its use.

Can landlords prohibit tenants from smoking medical marijuana or recreational marijuana (cannabis, weed, pot) to the same extent that they can with cigarettes?

In California, both medical and recreational marijuana use are legal. The use of medical marijuana became legal in the state with the passage of the Compassionate Use Act of 1996. CAL. HEALTH & SAFETY CODE § 11362.5. Then, on November 8, 2016, California voters approved the Adult Use of Marijuana Act (also known as Proposition 64), which legalized the recreational use of marijuana for individuals twenty-one years or older. While still illegal under federal law, it is now legal to grow, smoke, and possess marijuana (up to certain limits) for medical and recreational use under state law.

Although cannabis (marijuana, weed, pot) is not a cigarette or a tobacco product, landlords may still regulate its use on and in a rental property. As no law requires a landlord to allow smoking marijuana in a rental unit, a landlord who prohibits smoking tobacco in the premises will likely also prohibit smoking marijuana. If the lease does not explicitly address smoking cannabis, there are a number of other lease clauses—including a nuisance clause and a provision that bans tenants from violating federal law — that can be invoked to put an end to the use of marijuana by a tenant.

Because California and federal laws conflict, tenants should consult with an experienced tenant rights attorney if they have any questions about marijuana use in their apartment.

Is it discriminatory under the ADA or the FEHA for a landlord to prohibit a tenant from smoking medical marijuana (cannabis, weed, pot)?

While medical marijuana is legal in California, it is a Schedule I drug under federal law and has “no currently accepted medical use in treatment in the United States.” CONTROLLED SUBSTANCE ACT, 21 U.S.C. § 812.

California medical marijuana laws directly conflict with federal law, which makes the law murky for tenants in California who require the use of medical marijuana and want to request a reasonable accommodation from their landlord. Even if a tenant is a protected class under the Americans With Disabilities Act (ADA) and possesses a medical marijuana card, the tenant will still have to abide by the lease terms and federal law. The Ninth Circuit has held that medical marijuana use is not protected under the ADA. James v. City of Costa Mesa, 700 F.3d 394 (9th Cir. 2012).

In James, several disabled plaintiffs brought a lawsuit against the defendants, two California cities, to stop the defendants from shutting down marijuana dispensaries. Id. The defendants had passed ordinances that banned medical marijuana dispensaries from operating within city limits. The plaintiffs—all prescribed medical marijuana users—argued that the ordinances prevented plaintiffs from accessing public services in violation of Title II of the Americans With Disabilities Act. Id. In affirming the district court ruling that denied plaintiffs injunctive relief, the Court said, “the ADA does not protect against discrimination on the basis of marijuana use, even medical marijuana use supervised by a doctor in accordance with state law, unless that use is authorized by federal law.” Id. at 397.

Currently, there is also no protection for medical marijuana users under the Fair Employment and Housing Act (FEHA). While a landlord cannot discriminate in renting property based on a disability and must provide a reasonable accommodation to a tenant for a known disability, it is unlikely that a tenant may seek a reasonable accommodation from their landlord to smoke marijuana under the FEHA. No court has directly addressed this issue yet.

The California Legislature recently introduced a bill (AB 2069) that would amend the FEHA and create a protected category for employees with a medical marijuana card. While the bill prohibits employers from discriminating against medical marijuana users, it follows that the bill will also have an impact on whether tenants will be able to request a reasonable accommodation from their landlord. As of May 25, 2018, the bill was still in committee.

Because the laws are still somewhat up in the air, it is important for tenants who require the use of medical marijuana to speak to an experienced tenant rights attorney should they have any questions or if they are facing an eviction.

Does San Francisco have a tenant law that prohibits smoking in an apartment building?

San Francisco has banned smoking in all indoor common areas such as elevators, stairways, lobbies, and hallways of multi-unit rental buildings. S.F. HEALTH CODE, art. 19F, § 1009.22(f). Smoking is also prohibited outdoors within ten feet of doors and windows. Id. Because landlords can regulate whether or not a tenant may smoke inside their own apartment, almost all San Francisco leases contain a “no smoking” clause that the tenant must follow. CAL. CIV. CODE § 1947.5.

Where a lease does not prohibit smoking, a tenant can continue to smoke regardless of the landlord’s request to stop. Absent a “no smoking” provision in a lease, or other clause that limits or bans smoking, unless the tenant agrees to new written terms that prohibit the activity, a landlord cannot unilaterally take away the right to smoke that a tenant had at the beginning of the tenancy. S.F. CAL., RENT ORDINANCE § 12.20.

Even if the lease is silent on smoking, a landlord can still pursue a nuisance eviction, one of the just causes for eviction in San Francisco. S.F. CAL., RENT ORDINANCE § 37.9(a)(3). A landlord may claim that the tenant’s smoking causes “a substantial interference with the comfort, safety or enjoyment of the landlord or tenants in the building, the activities are severe, continuing or recurring in nature, and the nature of such nuisance, damage or interference.” Id. Also, neighboring tenants affected by smoke could pursue a private nuisance claim against the smoking tenant. CAL. CIV. CODE § 3479.

If a tenant has questions about smoking in their unit, or is served with an eviction notice or lawsuit, they should immediately consult with an experienced San Francisco tenant rights attorney.

Does Berkeley have a tenant law that prohibits smoking in an apartment building?

As of 2014, smoking is completely prohibited inside of all multi-unit housing with two or more units. This also includes areas such as private decks, balconies, and porches of units. BERKELEY, CAL., MUN. CODE § 12.70.035. Smoking is additionally prohibited in all indoor and outdoor common areas of multi-unit housing. Id. One exception to Berkeley’s smoking prohibition is the use of medical marijuana. Id. If a tenant has a medical marijuana card, the tenant may smoke on and in the premises.

If a tenant’s lease began before 2014 and does not contain a “no smoking” provision in a lease, or other clause that limits or bans smoking, a landlord cannot unilaterally take away the right to smoke that a tenant had at the beginning of the tenancy, unless the tenant agrees to a written addendum that prohibits the activity. BERKELEY, CAL., MUN. CODE § 13.76.130.

Even if the lease is silent on smoking, a landlord could seek to evict a smoking tenant based on an action for nuisance by claiming that the tenant has “continued, following written notice to cease, to be so disorderly as to destroy the peace and quiet of other tenants or occupants of the premises.” Id. Also, neighboring tenants affected by smoke could pursue a private nuisance claim against the smoking tenant. CAL. CIV. CODE § 3479.

If a tenant has questions about smoking in their unit, or is served with an eviction notice or lawsuit, they should immediately consult with an experienced Berkeley tenant rights attorney.

Does Oakland have a tenant law that prohibits smoking in an apartment building?

Oakland law prohibits smoking in all indoor and outdoor common areas of apartments and condominiums. OAKLAND, CAL., MUN. CODE § 8.30.050. Properties are allowed to have a clearly designated outside smoking area, but it must be at least twenty-five feet away from the building and from any areas used by children. Id. The smoking policy of the building must also be disclosed to tenants and prospective tenants. Id.

If the lease is silent on smoking, a landlord can seek to evict a smoking tenant for nuisance, one of the just causes for eviction. OAKLAND, CAL., MUN. CODE § 8.22.360. The landlord may claim that the tenant “has continued, following written notice to cease, to be so disorderly as to destroy the peace and quiet of other tenants at the property.” Id. Also, neighboring tenants affected by smoke could pursue a private nuisance claim against the smoking tenant. CAL. CIV. CODE § 3479.

If a tenant has questions about smoking in their unit or is served with an eviction notice or lawsuit, they should immediately consult with an experienced Oakland tenant rights attorney.

What can a tenant do about secondhand smoke?

Lease agreements began routinely including clauses to prohibit smoking to address the issue of secondhand smoke inhalation by tenants.

Despite the laws and lease terms, should secondhand smoke become an issue for a tenant, the tenant may be able to claim that the secondhand smoke constitutes a nuisance or disrupts their right to quiet enjoyment of the rental unit. Birke v. Oakwood Worldwide, 169 Cal. App. 4th 1540 (2009). In Birke, a tenant filed a lawsuit against owners and operators of an apartment complex for failing to limit secondhand smoke in outdoor areas of the property. Id. While the apartment building prohibited smoking in all indoor areas, it allowed smoking in the outdoor common areas. Id. The tenant claimed that the secondhand smoke aggravated asthma and allergies. Id. at 1544. The Court held that the tenant could maintain a cause of action for nuisance against the owners and operators of the complex. Id. at 1552.

A tenant may make a claim for a private nuisance against a smoking tenant. A private nuisance is an action or behavior that is “injurious to health … or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.” CAL. CIV. CODE § 3479.

When can a landlord evict a tenant for smoking cigarettes, e-cigarettes, or marijuana (cannabis, weed, pot)?

Landlords can evict smokers who violate a non-smoking provision in their lease, just like any other breach of the lease. The landlord can serve a three-day notice to “cure or quit” to the smoking tenant. If the tenant does not stop the lease violation in a timely manner, the landlord may proceed with an eviction lawsuit against the tenant.

In rent-controlled jurisdictions such as San Francisco, Berkeley, and Oakland, a landlord can also attempt to evict a smoking tenant under a nuisance theory, which is one of the just cause reasons for eviction. If a tenant is served with an eviction notice or lawsuit, they should immediately consult with an experienced tenant rights attorney.

If a tenant has any questions regarding their rights to use medical marijuana, they should immediately contact an experienced tenant law lawyer.

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