If you are a renter in San Francisco, you may have received – or should receive – a Notice from your landlord pursuant to a new San Francisco Health Code regarding tobacco smoke. The new code requires landlords to designate units as “smoking optional” or “smoke free,” and give notice to existing tenants that they may elect one or the other designation.
Specifically, San Francisco Health Code Article 19M states:
- If the existing residential rental unit does not have a current lease designating the unit as smoke free, then the owner’s designation must be smoking optional.
- Tenants in a unit with a smoking optional designation, may request that the property owner designate the unit as smoke free.
- Landlords must also provide rental applicants with a list of which units in the building are smoking optional and make that list available to current residents as well.
For current tenants, what this choice means is that if you opt to make your unit “smoke free,” then a non-smoking provision becomes part of your lease (just like a no-pets provision or a no-sublet provision).
Often, a letter from your landlord takes this or a similar form: “Pursuant to your lease agreement, you as the tenant are allowed to smoke tobacco. You have the option to designate your apartment as non-smoking under San Francisco Health Code, Article 19M. If you do not smoke tobacco within your apartment and would like to designate your apartment as non-smoking, please notify the landlord within 30 days of the date of this Notice.”
If you are a non-smoker, do not assume that you should sign and return this document to make your unit smoke-free. I say you should not limit your tenancy in any way - e.g. by agreeing to make it smoke-free. That would (1) give the landlord one more possible basis to evict you (by claiming, true or false, that you violated the agreement), and (2) simply limit your freedom, and that is not a good thing. In addition, by not signing you obtain some possible legal leverage for use in future disputes with your landlord because you are asserting your rights as a tenant.
Making your unit non-smoking by the terms of the lease also gives room for disputes between you and your neighbors. For example, suppose you have a zealous anti-smoking advocate as a neighbor and then you or one of your guests breaches the non-smoking rule (by cigarette or otherwise): that could give cause for the neighbor to make a stink. And, again, create some plausible basis for your landlord to try to evict you.
If you are a renter, your rental unit is your home. If you don’t want people to smoke in it, you can set that rule. There is no reason to add a non-smoking a provision to your lease, and many reasons not to do so (as noted above). A lease is a binding contract between you and the landlord – why give the landlord any more power over you than absolutely necessary?
Maybe your old pipe-smoking grandfather comes over for a visit. Do you want to deny him one of his last pleasures? Maybe you’re have a one-night stand. Do you want to say – or would you even remember to say – this is a “non-smoking” apartment? Maybe you might even feel like having a smoke yourself. Will a neighbor mistake your medical marijuana for a cigar? You get the point: there are untold possibilities where you may want to allow a puff or two in your home. Don’t give the landlord – or neighbors – another way to try to kick you out of your own home.
Now for general principles. When the question is “to sign or not to sign?” the answer is: do NOT sign until you have considered all the legal and practical implications of the document. Consult an attorney experienced in the relevant field of law before your signature becomes your regret.
In the arena of landlord/tenant law in San Francisco, there are many other “forms,” “notices” “requests for information,” “questionnaires,” or “declarations” that tenants may receive from their landlord. You should consider very carefully the question of whether or not to sign.
Hey Landlord, put that in your pipe, and smoke it!