Landlord’s No Smoking Policy for Tenants
Landlord’s No Smoking Policy
Does a no-smoking policy benefit multi-unit housing? Many landlords think so. A no smoking rental policy can help protect the landlord’s investment in the property and the health and safety of his tenants.
As landlord, there is a legal duty of care to tenants to exercise reasonable care in the management of the property to help protect persons and property from unreasonable risks of harm. A landlord has the right to prohibit dangerous, harmful, and damaging behaviors on the rental properties. Accordingly, a landlord establishes his rental business policies and practices to reduce known risks, manage operating costs, and fill vacancies. A no smoking policy is a rental policy, developed in a manner similar to other rental policies, to help protect the business and support its goals.
The most commonly asked question regarding a no smoking policy is whether it is legal for a landlord to prohibit smoking on the rental property and in the rental unit. Landlords have the legal right to set rental policies on how a tenant may use the rental property. A no smoking policy is an example of a limitation of the tenant’s use of the rental property just as a no pets policy is a limitation on the tenant’s use of the property.
There is no state or federal constitutional right to smoke. Smoking is not a protected characteristic under any federal, state, or local fair housing laws. Smokers are not a protected class under federal Fair Housing Act regulations.
A landlord can legally establish a no smoking policy for his rental properties. However, the no smoking policy cannot be a “smokescreen” for illegal discrimination against prospects, applicants, and tenants and must be developed and administered in a non-discriminatory manner that is compliant with applicable landlord-tenant statutes.
A no smoking policy is a no smoking rule, not a no smokers rule. The no smoking policy applies to the activity of smoking, not to the individual’s status as a smoker. Smokers can apply and qualify for tenancy per screening and selection criteria. What they cannot do is smoke inside the building or in other areas as specified in the no smoking policy, such as outdoors, balconies, or patios.
A smoke-free property provides benefits to landlords. Considerations for implementing a no smoking policy include:
Potential Cost Savings
Turnover costs to renovate a unit that was occupied by a smoker can be twice as much or more than normal renovation costs depending upon how long the tenant smoked in the unit and how long the tenant lived in the unit.
While ‘wear and tear” expenses cannot be charged to any tenant moving out, there can be additional repairs or replacements needed to restore a smoker’s unit to rentable conditions. There will be extra costs to clean and/or replace carpeting, flooring, or tile, replace window coverings, repair or replace surfaces with burns or stains, clean, prime, and paint walls and ceilings to cover stains or odors, replace air filters, clean ventilation ducts, and thorough cleaning of appliances and fixtures to remove smoke grime and odor.
Care should be taken to document move-in/move-out conditions of the rental unit so as to correctly and adequately document security deposit deductions for tenant damages.
Building maintenance costs may be reduced as less cleaning is needed to keep indoor common areas clean and sanitary. The life cycle of mechanical systems may be extended if systems, such as air handling systems, are able to operate more efficiently and require less maintenance and repair. Building utility costs may be lower as a result of system efficiencies.
Building grounds maintenance costs may be reduced once debris from discarded smoking materials is eliminated.
Potential Insurance Savings
A nonsmoking policy may qualify the property for a lower insurance rate. Some insurance companies may give a premium reduction to landlords for having a smoke free property.
By prohibiting smoking on the premises and in the unit, it is very likely that fewer smoking-related claims will be filed with the insurance carrier. This could also mean savings as reflected in a lower insurance premium.
Property Management
A no smoking policy can have a positive impact on the business bottom line. Studies have shown that tenants, both smokers and non-smokers, prefer smoke free properties. Smoke free is a market driven, highly desirable amenity that tenants are willing to pay more for. Prospective tenants are drawn to properties advertising a no smoking policy. Market studies show vacancy rates are lower and days on market are shorter for no smoking properties. A no smoking policy not only attracts tenants but helps to retain tenants.
Considerations must also be given to:
Impact on Property Values
Smoke free properties are more attractive to future buyers. Tobacco smoke can be damaging to structures and fixtures and not easily remediated. The resale value of the investment property could be lowered because of residual smoke damage. Some potential buyers may not even consider properties that have extensive smoking-related issues.
Fire Hazard Risk
There is a very real danger from smoking-related accidents and careless handling of smoking materials. Smoking is a leading known cause of fires, resulting in injury, death and property damage. According to studies, careless smoking is the most common cause of death in home fires and the third leading cause of fire injuries in the United States.
Legal Obligations
As noted above, landlords have a legal duty of care to provide reasonable standard of care for health and safety of their tenants. Landlord-tenant statutes obligate the landlord, under the warranty of habitability, to provide safe and sanitary rental living conditions. Additionally the tenant has the right under the covenant of quiet enjoyment, to be free of nuisance or harassment.
It may be that landlords are potentially more liable by law for not having a “no smoking” policy. Tenants are more knowledgeable about health risks and more savvy about legal options to protect their health. It is well documented that exposure to secondhand smoke causes serious health issues. Tenants who develop health issues caused or exacerbated by exposure to secondhand smoke may file legal action against the landlord if the landlord fails to take appropriate steps to resolve the issue.
Tenants have been able to recover against landlords for failing to protect tenants’ rights for safe habitable living conditions. State courts have ordered significant rent reductions, judicial termination of leases or other penalties under legal theories of nuisance, breach of warranty of habitability, and breach of the covenant of quiet enjoyment.
Fair Housing Act / Americans with Disabilities Act
Non-smokers with serious breathing disabilities or smoke allergies may have legal protection under the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA). Landlords may be obligated to take reasonable measures to lessen damaging effects on such individuals.
The federal Fair Housing Act (FHA) prohibits housing discrimination based on race or color, religion, sex, family status, national origin, or disability. The Fair Housing Amendments Act expanded coverage of the FHA to prohibit discrimination against people with disabilities including those with severe breathing problems which are exacerbated by secondhand smoke.
People who have a physical or mental disability (including breathing) that substantially limits major life activities or have a record of such disability, or are regarded as having such a disability are protected by the Fair Housing Act.
Landlords must provide reasonable accommodation to tenants with disabilities. A reasonable accommodation is a change in rules, policies, practices, or services that may be necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling. Failure to provide a reasonable accommodation may be construed as discrimination.
Potential remedies may include repairs or modifications to the building which do not impose an undue burden on the landlord, or smoke free policies for the building including total bans on smoking in the building or portions thereof.
Smoking is not recognized as a disability. It cannot be used to request reasonable accommodation.
Health and Safety Concerns
Tobacco Smoke
The U. S. Surgeon General has declared that there is no safe level of exposure to tobacco smoke. Exposure to tobacco smoke, direct or secondhand, causes adverse health outcomes.
Some jurisdictions now require landlords to notify renters or purchasers about a building’s smoking policy. Several municipalities and a few states have adopted a smoking policy disclosure ordinance or statute requiring property owners of multi-unit rental properties to inform prospective residents of the smoking policy on the property, whether it is smoking-permitted or smoking-prohibited. Such disclosure may help the prospective tenant or buyer make a more informed housing decision.
Secondhand smoke
Exposure to secondhand smoke can lead to disease, disability and death. Smoke cannot be contained once it is in the air. Smoke infiltrates all areas regardless of the use of ventilation systems, air cleaners or purifiers.
Secondhand smoke is the exhaled smoke and other substances emanating from the burning of tobacco products that have been exhaled, or breathed out by the person smoking. It is a known carcinogen, classified as a toxic air contaminant, in the same class of contaminants as asbestos, lead, and vehicle exhaust.
Case law has held landlords responsible for exposing tenants to secondhand smoke.
The only way to stop secondhand smoke is to ban smoking altogether.
Thirdhand Smoke
Thirdhand smoke is residual nicotine and other chemicals from second hand smoke that is left behind on a variety of household surfaces. Thirdhand smoke can cling to hair, skin, and clothes. Thirdhand smoke can be found in furnishings, carpets, walls, household dust, or other common objects and surfaces where smoking occurred. Residue can be found long after smoking has stopped. The residue builds up over time, becoming progressively more toxic. Resistant to the normal cleaning procedures, thirdhand can’t be eliminated by airing out the room, opening windows, using fans or air conditioning, or restricting smoking to only certain areas of the dwelling.
As with second hand smoke, the only way to protect nonsmokers from thirdhand smoke is to create a smoke-free environment.