(A) Every lease or other rental agreement for the occupancy of a unit in a rental complex, including, for example, new units and existing units, entered into, renewed or continued month-to-month after December 2, 2011, shall include the provisions set forth in division (B) below, on the earliest possible date when such an amendment is allowable by law, when providing the minimum legal notice.
(B) Every lease or other rental agreement for the occupancy of a unit in a rental complex, including, for example, new units and existing units, entered into, renewed or continued month-to-month after December 2, 2011, shall be amended to include the following provisions:
(1) A clause providing that, as of December 2, 2014, it is a material breach of the agreement to allow or engage in smoking in the unit unless the landlord has supplied written notice the unit has not been designated a nonsmoking unit and no other prohibition against smoking applies. Such a clause might state, “It is a material breach of this agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to engage in smoking in the unit as of December 2, 2014, unless landlord has provided written notice the unit has not been designated a nonsmoking unit and smoking in the unit is not otherwise prohibited by this agreement, other agreements or by law.”
(2) A clause providing it is a material breach of the agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to engage in smoking in any common area of the property other than a smoking area. Such a clause might state, “It is a material breach of this agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to engage in smoking in any common area of the property, except in an outdoor area designated for smoking, if one exists."
(3) A clause providing it is a material breach of the agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to violate any law regulating smoking while anywhere on the property. Such a clause might state, “It is a material breach of this agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to violate any law regulating smoking while anywhere on the property.”
(4) A clause expressly conveying third-party beneficiary status to all occupants of the rental complex as to the smoking provisions of the agreement. Such a clause might state, “Other occupants of the property are expressly third-party beneficiaries of those provisions in this agreement that concern smoking. As such, other occupants of the property may seek to enforce such provisions by any lawful means, including by bringing a civil action in a court of law.”
(C) Whether or not a landlord complies with divisions (A) and (B) above, the clauses required by those divisions shall be implied and incorporated by law into every agreement to which division (A) or (B) applies, and shall become effective as of the earliest possible date on which the landlord could have made the insertions pursuant to division (A) or (B).
(D) A tenant who breaches a smoking provision of a lease or other rental agreement for the occupancy of a unit in a rental complex, or who knowingly permits any other person subject to the control of the tenant or present by invitation or permission of the tenant, shall be liable for the breach to:
(1) The landlord; and
(2) Any occupant of the rental complex exposed to smoke or suffering damages as a result of the breach.
(E) This chapter shall not create additional liability for a landlord to any person for a tenant's breach of any smoking provision in a lease or other rental agreement for the occupancy of a unit in a rental complex, if the landlord has fully complied with this section and § 94.5.060.
(F) Failure to enforce any smoking provision required by this chapter shall not affect the right to enforce such provision in the future, nor shall a waiver of any breach constitute a waiver of any subsequent breach or a waiver of the provision itself.
(Ord. 1332, passed 11-2-11)