Improving Your Bottom Line and Pleasing Your Tenants (Most of Them)

Written by Landlord Property Management Magazine on . Posted in Blog

 by Esther Schiller, Smokefree Air For Everyone (S.A.F.E.)

Tenant surveys conducted by the UCLA Center for Health Policy Research, the Los Angeles County Department of Public Health’s Tobacco Control and Prevention Program and the American Lung Association have been showing that most apartment residents want to live in a smoke-free environment. At the same time, these same surveys are also showing that most tenants don’t complain when they are breathing a neighbor’s tobacco smoke. They may not want to risk damaging a friendly relationship with that neighbor, or annoying the on-site manager who may also be a person who smokes. For whatever the reason, there seems to be a disconnect between owners and their tenants on this issue of smoking.

But the recent de-criminalization of marijuana in California and the possibility of increased smoking in units deserves the attention of landlords and property management companies. For some time, it’s been known that tobacco smoke can cause cancer and a host of other medical problems. The U.S. Surgeon General has been stating and re-stating that there is no safe level of exposure to tobacco smoke. What isn’t so well known is that marijuana smoke is also a carcinogen. In 2009, the California Environmental Protection Agency added marijuana smoke to the Proposition 65 list of substances that can cause cancer. The reason: marijuana smoke contains 33 of the same toxic chemicals found in tobacco smoke. This possible increase in smoking may also result in increased liability for landlords.

There is legal protection for landlords and managers who wish to adopt no smoking policies for their buildings. In January, 2012, Governor Jerry Brown signed California Civil Code 1947.5 which provides legal protection for adoption of no smoking policies in units, on balconies and patios and in common areas. In order to comply with that law, if a landlord or management company chooses to regulate smoking, leases or rental agreements for tenants must specify the areas of the property where smoking is not permitted.

It shouldn’t be a surprise that smokefree buildings save money in maintenance. A statewide study on property costs caused by smoking of tobacco products in apartments was conducted several years ago by Dr. Michael Ong and colleagues as part of a contract with the State of California’s Tobacco Control Program. A major California apartment association also participated.  The study was published in the American Journal of Public Health in 2012 and found that in the past year, over one-quarter (27%) of apartment buildings experienced smoking-related costs on average of nearly $5,000, per unit, but had a wide range with one property experiencing smoking–related costs as high as $84,000. The study also found that small properties with 15 or fewer  units incurred smoking-related costs on a per-unit basis that were over six times higher ($578 vs. $87) than large properties. According to Dr. Ong, an Associate Professor in Residence of Medicine at the UCLA Department of Medicine, “Since many owners of small properties are small businesses, these costs are even more substantial in relation to their operating costs.”

On the other hand, smoke-free residential buildings are eligible for a 10% discount from CIG (Capital Insurance Group). In addition, the new California law which allows adults to use marijuana also states that any location which bans the smoking of tobacco products automatically includes the smoking of marijuana. It is recommended, however, that for the sake of clarity, no- smoking leases should explicitly include marijuana as well as tobacco and vaping.

Some landlords have expressed concerns about the use of medical marijuana, specifically under Fair Housing Laws allowing smoking marijuana for illnesses such as cancer. Because marijuana has been listed as a Schedule One controlled substance by the Federal government, there have been few studies about the use of marijuana for medical purposes. But it is counter-intuitive to smoke marijuana which can cause cancer in order to control pain from cancer treatments and other medical problems. Increasingly, especially with the proliferation of retail establishments that sell marijuana,  patients are being informed about oils, patches, topical creams, liquid drops and sprays which can be used for medical needs instead of smoking.

A new problem which is just beginning to catch the attention of landlords, managers and tenants is the problem of third-hand smoke. For several years, a consortium of scientists at different labs has been studying this problem. Third-hand smoke is formed when some of the chemicals in secondhand smoke attach to walls, floors, windows, window coverings, furniture and clothing. Third-hand smoke also attaches to skin and hair and can transfer into near-by units. As people continue to smoke in an indoor environment, the third-hand smoke forms reservoirs of chemicals, outgasses back into the air, and is present even when no one is smoking. The substances in third-hand smoke connect with other non-toxic chemicals present in the home environment and become more dangerous (carcinogenic) over time.

The scientists have also been studying how to clean units so that the third-hand smoke is removed. But they’ve discovered that vacuuming, wet-wiping surfaces and airing out rooms doesn’t remove the third-hand smoke. In fact, even after a unit has been completely renovated, weeks later the third-hand smoke is still present in the dust in the air. Scientists are beginning to suggest that no one should be smoking in an indoor environment. Because marijuana smoke has chemical similarities to tobacco smoke, it also can create third-hand smoke.

The question is, why aren’t more landlords adopting no smoking policies for their buildings? According to the UCLA Center for Health Policy Research, some landlords admit they didn’t know it is legal and other landlords say they don’t know how to begin. It is helpful to begin with a one-question survey of your tenants: “Would you like to live in a smokefree building?”  Most residents, even including some tenants who smoke, will say yes. Providing information to tenants about the health effects of tobacco smoke and marijuana smoke prior to adopting a no-smoking policy is also helpful. Some landlords will set a date for the policy to begin and will require all tenants to sign a no-smoking lease addendum. (Landlords need to wait for existing leases to expire before requiring a signature on a no-smoking lease addendum.) Some landlords will begin a no-smoking policy only with new tenants while at the same time, informing existing tenants of the fact that the building is in process of moving toward a no smoking environment. This works best when prospective tenants are informed about the location of smoking-permitted units.

But there is the problem of the tenant who signs a no-smoking lease and then does not comply.  Landlords have shared with me that evictions can be very expensive and not always successful. Can that be a reason that some landlords avoid adopting a no smoking policy, or worse, do not enforce a no smoking policy which has been adopted? Perhaps there is a remedy for this potential problem:  A no-smoking law adopted by the city or county.

            In California, more than fifty cities and counties have passed ordinances which regulate smoking in apartments. Most of these laws regulate smoking in condominium buildings as well. At first, many of the ordinances allowed a percentage of units to be set aside as “smoking permitted.” But as more information begins to be known about the ways smoke can move from unit to unit in a building, the more recent ordinances require no smoking in all units, balconies, patios, and common areas. If there is a location designated for smoking, it is outside, a certain distance away from non-smoking areas. The city of Beverly Hills is the most recent California city to adopt a no smoking policy for multi-unit housing. Their law requires no smoking in all apartment and condominiums buildings plus indoor and outdoor common areas with no exceptions.

According to the California Department of Public Health, fewer than 12% of California adults are still smoking, and according to the American Lung Association, most of those still smoking want to quit. A combination of education and enforcement from a local city coupled with no smoking leases will help to change the belief that it is OK to smoke in an apartment or condominium.

Even cities with rent control laws can enact laws that require smokefree multi-unit housing. Berkeley, a city with a very strong rent control law, did enact a very strong no-smoking law for apartments and condominiums in 2014. Their no- smoking law does not interfere with their rent control law. Landlords are required to provide no smoking leases for their new tenants. Existing tenants are simply informed about the new law and are required by the city to comply with it. They can sign no smoking leases if they choose to. The law is enforced by the city when two tenants in the same building complain about the same person. So far, education and reminders have resulted in compliance.

ASHRAE, the American Society of Heating, Refrigerating and Air-Conditioning Engineers, a global organization with 50,000 members world-wide, restated their position on smoking in 2016. They base their ventilation standard for acceptable indoor air quality on an environment that is completely free from secondhand tobacco smoke, secondhand marijuana smoke, and emissions from electronic smoking devices. All of these can cause cancer and other illnesses. Their statement: “At present, the only means of effectively eliminating health risks associated with indoor exposure is to ban smoking activity.”

Esther Schiller is Executive Director of the non-profit organization Smokefree Air For Everyone (S.A.F.E.) She also manages the website of the Smokefree Apartment House Registry at www.smokefreeapartments.org   For more information, contact Esther at info@smokefreeapartments.org or 818-427-8921

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