A No-Smoking policy might seem clearer and more straightforward than it is. Smoking tobacco is legal under federal law. The federal government doesn't restrict smoking in private rentals. And smoking does not fall under any Fair Housing Act protection. In fact, federal agencies do restrict (but don’t prohibit) smoking in public housing. So, what does this mean for private landlords?
First, let’s consider what is being smoked. When it comes to smoking, many of us only think about tobacco in cigarettes, cigars, and pipes. But there are other types of smoking that include vaping, medical or recreational marijuana, and smoking myth/other illegal drugs that are clearly outside of the law.
In short, both federal and most states support a landlord’s right to designate his or her rental property as smoke-free. Smoking is not a legal right. A private landlord can implement regulations and restrictions about smoking. This can be a complete ban covering the entire property, or it can be a ban for some or all rental units, or common areas. In fact, many states and cities have laws that prohibit or limit smoking in or around multi-unit buildings because smoke migrates so easily across shared spaces. So, you want to check your local laws to determine if you can even allow smoking in some areas.
You do need to check local laws because there are only two federal bans on smoking. One is no smoking on commercial air flights and the other is a presidential ban for all interior spaces controlled by the executive branch. However, many local laws exist such as no smoking within 25-feet of a public doorway, no smoking in restaurants, retail businesses, etc. Although commercial landlords who manage properties subject to no-smoking laws should inform tenants of the rules, it's the tenant's responsibility to be aware of and comply with the law. For residential landlords, it requires a no-smoking policy included in the lease agreement and enforcement. Still, residential no-smoking policies are not always crystal clear.
Marijuana can be a bit tricky. Marijuana is still against federal law, which means it cannot be smoked in federal public housing. In states that allow smoking marijuana recreationally, it can be banned with a general no smoking policy. Many smoking laws define smoking as any ‘plant matter’ that can be smoked. But again, it would be wise to check your local laws. Medical marijuana is where it gets really tricky. Many laws are silent on the matter of medical marijuana and others carve out an exception for smoking medical marijuana.
Even where there are laws or policies restricting smoking, many have not been updated to include ‘vaping.’ Like tobacco smoking, vaping is not a protected right. It is up to individual landlords to enact a no-vaping policy. Still, there can be a short-term problem enforcing a no-vaping policy if it wasn’t in the original lease agreement (see the enforcement section below).
In almost all cases, a landlord with a no-smoking policy can terminate a lease for violation and evict a tenant who smokes. It’s best to have the policy directly in the rental agreement. If it is only in the general rules, the landlord may have to document multiple violations before being able to take action.
For other tenants forced to inhale secondhand smoke, it is a valid health concern. Even if there is not a no-smoking policy, other tenants could claim their unit is uninhabitable due to secondhand smoke. Additionally, there are several other reasons why a landlord would want to ban smoking.
Specific to you as a landlord, smoking is the leading cause of residential fires. Beyond the dangers of smoking, once the smell gets into carpets, paint, drapes, and other permanent fixtures, it can be next to impossible to remove the smell to the satisfaction of nonsmokers. By far, the majority of tenants are nonsmokers, and they will seek rental units with a no smoking policy. Here are more common reasons why landlords have no-smoking policies:
No-smoking policies are mostly self-enforcing. The first step is having new tenants and renewing tenants sign a no-smoking lease or addendum. For month-to-month tenants, have them sign the addendum one month before the rule change becomes effective.
Take additional steps to enforce the policy, such as:
What experiences about implementing and enforcing a no-smoking policy can you share with readers? Please leave a comment.
Also, our weekly Ask Brian column welcomes questions from readers of all experience levels with residential real estate. Please email your questions, inquiries, or article ideas to [email protected].