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CalAttorney2
CalAttorney2, Attorney
Category: Legal
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Experience:  Civil litigation attorney for individuals and businesses.
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My name is XXXXX XXXXX this is a landlord/ tenant issue. In

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My name is XXXXX XXXXX this is a landlord/ tenant issue. In my apartment complex (I live in public housing after I had to stop working and had 9 major surgeries due to being hit by a drunk driver). Management here is trying to enforce a smoking ban.(I don't drink, I don't do ANY DRUGS but I DO smoke cigarettes AND I have NEVER had any problems or complaints here) I have done some research and discovered that the constitution requires that laws be fact-based. Smoking bans are not chosen pursuant to medical science, research & recommendations. They are ineffective as they are a non-science based arbitrary invention without supporting scientific or medical evidence. These bans are political based, biases, in error, misunderstood etc. Management (here) are trying to MAKE ME SIGN an agreement that states that I will no longer smoke on the campus or in my own home. I do NOT MIND not smoking in common areas and I follow the rules. I am not trying "just to be able to smoke". I am sincerely XXXXX XXXXX my safety because this means that I will have to completely walk off of this campus any time (day & night) that I want to have a cigarette. Currently, my lease does NOT say anything about smoking in my dwelling. I have been doing it for the entire 3 years that I have lived here. I am concerned that management will try to evict me if I don't sign this agreement or if I do have a cigarette in my apartment. Is this enforceable in court? Can they potentially evict me over this issue? Can they MAKE ME SIGN this agreement? Please respond at your (earliest) convenience because they are trying to make me sign this ban of last week. I have just told them that I would like to have an attorney review it first. I can be reached at (Victoria Larson)[email protected] or (XXX) XXX-XXXX. The smokers here at my complex are very concerned that (we) will all be evicted. Thank you.

William B. Esq. :

Dear Customer, thank you for choosing Just Answer. I would like to assist you today.

William B. Esq. :

The restriction on smoking in both the common areas and in your separate apartment are legal and can be enforceable.

William B. Esq. :

The way in which they appear to be attempting to change your lease may or may not be valid, in order to change a residential lease to include terms of "non-smoking" you must provide a 30 day notice of change like you would under any other lease term change.

William B. Esq. :

An article explaining California's legislation (California Civil Code Section 1947.5) on smoking in apartment or common areas can be found here: http://articles.latimes.com/2012/jul/08/business/la-fi-rent-20120708

Customer:

Dear expert,

Customer:

Dear expert, have tenants actually been evicted for smoking in their own apartments? I DO NOT smoke outside or in common areas. I smoke from time-to-time in my apartment. Isn't this an invasion of privacy? Doesn't this "blur" the line between "private & public"? My new lease says nothing about smoking at all. I am looking at it right now. But the management is trying to make me sign an addendum stating that I will no longer smoke on the campus. Can they evict me if I refuse to sign it? Can they really evict me if I only smoke in my apartment?

William B. Esq. :

Yes, tenants are evicted for smoking in their apartments. It appears from your post that your current lease does not have any restrictions on smoking, however, as you have been living there for 3 years, you are now on a "month to month" lease, meaning the landlord can amend or change the terms of the lease on 30 days notice. This includes restrictions on conduct in your unit (another example of something like this would be if an original lease permitted dogs, a tenant moves in and two years later, the landlord chooses to no longer allow pets). You do not have to sign the document, but you will be facing a termination of your lease agreement unless you can come to a written resolution with your landlord in its place.

William B. Esq. :

The statute regarding change in lease agreements is Civil Code 827(a) and (b): http://www.leginfo.ca.gov/cgi-bin/displaycode?section=civ&group=00001-01000&file=818-827, you can also find some limited information on the California Department of Consumer Affairs website (there is much more information on landlord/tenant issues in general that the department also provides regarding dispute resolution with landlords): http://www.dca.ca.gov/publications/landlordbook/before-rent.shtml#footnote54

Customer:

Actually, the new lease that is in front of me, is another year. But, like i said, it says nothing about smoking. So aren't I under a new whole year on my lease? I do not know how my landlord & I can come up with a resolution. I am quite concerned for my safety. I would have to walk quite a distance and enter into a bad area and put myself in jeopardy if I would have a cigarette.

William B. Esq. :

Are you being asked to sign a new lease, and this document together?

Customer:

Yes

William B. Esq. :

The landlord is offering you the opportunity to renew your lease, with this new restriction. You do not have to accept the lease, you can reject it and then you will have 30 days, or possibly 60 depending on what you work out with your landlord, to relocate. You may be able to negotiate the terms of the non-smoking prohibition, I cannot help you with a strategy to go about doing this (I cannot practice law through the internet, and I don't have the facts necessary to come up with viable options and alternatives that may work), but I want to give you an accurate position on the law. The landlord has no obligation to continue its lease to you, and the landlord has no obligation to allow you to smoke in the unit or on the common area. I wish I had something that was more supportive of your position, but again, I do want to make sure I provide the law accurately so you can plan your discussions with the landlord accordingly.

Customer:

Thank you William. I understand.

William B. Esq. :

I will note, even if you move following a rejection of this contract, I would not refer to this as an "eviction" it is a change in rent terms. You have not broken any terms or restrictions of the lease, your rent is paid up, and you are not being "evicted" in a legal sense. I only give this as I have some clients who miss out on housing opportunities based on a mistaken report in their application.

Customer:

I just have one more question. Is management required to "

Customer:

ff

Customer:

"offer"

Customer:

me another accomodation? A

Customer:

a reasonable accomodiaton?

William B. Esq. :

No, unfortunately current public policy (legislation) does not protect smokers in this way. Your management or landlord is not required to offer you any reasonable accommodations with regard to this.

Customer:

ok, thank you. I will continue to research and read the links you provided.

William B. Esq. :

You are welcome, thank you for using our service. I do wish you the best.

William B. Esq. :

I hope that my answer was of assistance to you. My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back, I am happy to address follow-up questions. Please remember to rate my service once you have all the information you need. Thank you for your business!

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