It’s getting harder and harder to find a place that allows smoking in any form. Many state and local laws prohibit smoking in workplaces and public spaces, and restrict or prohibit it in multiunit residential properties. If no state or local smoking law applies to a property, the lease or rental agreement controls whether and where a tenant can smoke on the premises.
State and federal antidiscrimination laws extend protections on the basis of race, age, disability, and many more categories—but no laws protect a person’s right to smoke. In fact, the federal government has barred smoking in public housing because of the serious health hazards of secondhand smoke. Likewise, many states and cities have also passed strict anti-smoking laws.
Many state and city anti-smoking laws prohibit or limit smoking in multiunit buildings (typically those with more than three units), because secondhand smoke can easily migrate among units with shared walls and facilities.
Some homeowners’ associations set restrictions on if and where residents—both owners and renters—can smoke. A landlord whose tenant breaks the association’s rules could be subject to fines or penalties.
Landlords who manage property subject to anti-smoking laws or regulations should make sure their tenants are aware of the rules. The best way for landlords to inform tenants of any smoking regulations is to put them directly in the lease or rental agreement. Landlords can also use the lease to inform tenants about the consequences of breaking the smoking rules, such as having to pay a fine, having their tenancy terminated, or even being evicted.
Many landlords choose to ban or limit smoking in their rental properties—even when the state, city, and homeowners’ association have not disallowed it. Aside from the health concerns associated with smoking and secondhand smoke, the reasons landlords regulate smoking include a desire to limit fire hazards on the property, reduce fire insurance premiums, and avoid the stains and odor that can result from smoking. Another reason some landlords prohibit smoking is to avoid lawsuits. Tenants have sued landlords who allow smoking in their building on various legal theories, such as nuisance (for example, the smell from cigarette smoke is annoying) and breach of a duty to keep the rental habitable (for example, claiming that allowing secondhand smoke makes living in the rental a serious health hazard). Tenants who bring these suits don’t necessarily win, but many landlords don’t think allowing smoking is worth the risk of being sued.
Landlords can limit or prohibit smoking the same way they can prohibit pets, waterbeds, or excessive noise. Landlords can terminate the tenancies of or evict tenants who violate lease terms, including any terms prohibiting smoking. Because tenants are responsible for their guests’ actions, tenants who allow guests to smoke—even if they themselves do not smoke—are also at risk of losing their tenancies for violating nonsmoking rules.
A landlord who wants to ban or limit on smoking should include a clause with that policy in the lease or rental agreement. If the landlord restricts smoking instead of prohibiting it, the lease should be very specific about where smoking is and is not allowed. For example, some leases ban smoking in areas where other tenants might be affected, including common spaces such as lobbies, hallways, parking lots, laundry rooms, and around swimming pools. The lease could also designate specific areas where smoking is allowed. Because a smoking policy is a big deal—many tenants will consider it when deciding whether to rent at a property—the rules should not be relegated to a set of “rules and regulations,” which are more suitable for lesser issues, such as laundry room hours.
If the lease or rental agreement doesn’t include rules about smoking, the landlord cannot prohibit or restrict smoking until the lease is up. When the lease ends, the landlord can present a new lease containing smoking rules, and the tenant can choose to either sign the new lease (agreeing to the rules) or move out of the rental. If the landlord and tenant have a month-to-month rental agreement in place, the landlord must give the tenant whatever amount of notice the law requires (usually 30 days) before changing the rules.
Most state laws that restrict or prohibit where you can smoke apply to all kinds of smoked substances, including tobacco, herbs, and marijuana, regardless of the method of delivery (such as in a cigarette, pipe, or other device). Some cities have included vaping or e-cigarette use in their anti-smoking laws; others have not. Landlords who use well designed no-smoking clauses similarly prohibit any type of smoking, even when the smoking is done for medical reasons.
The American Nonsmokers’ Rights Foundation keeps tabs on current anti-smoking laws, and you can always run an Internet search about smoking in your city to see what is or is not allowed where you live.
