Making rental units smoke-free saves money.
Landlords can save money. Some estimates place the cost of preparing vacated properties for the next tenant at 2-3 times higher for units previously occupied by smokers, as compared to those rented by non-smokers. With non-smoking units, there is less cleaning, painting, and general property damage like carpet burns to deal with.
Smoke-free units reduce tenants’ risk of fire damage which also can reduce insurance costs.
It IS legal for landlords to make rental units smoke-free.
Smokers are not considered a protected class under anti-discrimination or fair housing laws. Smoking is not a “constitutional right.” Therefore, landlords or apartment managers are free to choose to rent to non-smokers exclusively, as they would choose to rent to people without pets. A senior lawyer at the Tobacco Control Resource Center of the Northeastern School of Law in Boston reports that no law in the US prohibits residential property owners from banning smoking in their units.
Asking prospective tenants to acknowledge on month-to-month rental contracts or longer lease agreements that they will not smoke or allow smoking in their units is legal. As of November 2007, about 60 public housing authorities had smoke-free policies in place.
Nonsmokers’ legal justification to have smoke-free units.
The Federal Fair Housing Act protects those with disabilities for which exposure to tobacco smoke is an aggravating factor. Under this law, owners could be held accountable for managing their units in a way that exposes such individuals to second-hand smoke from adjacent units (i.e. construction or ventilation does not adequately prevent smoke from traveling between units).
Non-smokers are considered a protected class in the Nebraska Fair Housing Act - landlords are not allowed to bar non-smokers from renting a unit on the basis of their choice to not smoke. Over the past 15 years or so, there have been at least 27 lawsuits brought against rental property owners by non-smokers being exposed to second-hand smoke, and in most cases the judges sided with the non-smoker!
Resolving ETS Issues: Adopting Smoking Policy Changes
Steps to Make Rental Units Smoke-Free
1. Begin with a door-to-door survey.
Survey which tenants smoke and evaluate overall tenant attitudes about exposure to other peoples’ cigarette smoke. – See page 8 for sample survey questions.
2. Decide on a feasible plan.
Organize a meeting to present survey results and discuss plans to establish a new smoke-free policy. This may also be a good forum to present facts on the harmful effects of secondhand smoke.
3. Notify tenants of the plan.
Send each rental unit a written notice of the new smoke-free policy and post notice in common areas.
4. Implement the new policy.
Post the new smoke-free policy in common areas. Include the smoke-free requirement in rental and/or lease agreements.
5. Monitor the policy.
Work with tenants to handle complaints when they arise. Give violators three warnings before starting eviction procedures.
Consider this…
As an incentive to support a smoke-free policy, a landlord can offer smoking tenants an opportunity to move into newly vacant units (i.e., freshly painted). This paves the way to creating a smoke-free building or wing.
Types of Smoke-Free Policies
Phase-In.
Consider phasing in smoke-free units in all or part of the building(s). This can be achieved through attrition, or over a period of years. When a smoker vacates, simply rent the vacated unit as a smoke-free unit. Smoke-free policies can also be “grandfathered” in (i.e., “Starting January 1, 2009 apartments will be smoke-free for all new tenants.”)
Designate specific areas a smoke-free.
Separate wings, patios, areas where children play or hallways can be designated fore smokers and nonsmokers. Select the areas with the smallest number of smokers to become the nonsmoking areas if there is more than one building, perhaps one building could be made smoke-free.
Prohibit smoking in common use areas.
Common use areas such as lobbies, hallways, balconies, doorways, laundry facilities, recreational rooms, playgrounds, swimming pool areas, etc., can be designated as smoke-free.
Add an additional security deposit.
Require an additional security or cleaning deposit for smokers. This will cover additional cleaning expenses caused by smoke damage.
And Remember…
Many disputes over secondhand smoke can easily be solved if a policy is established.
Legal Cases on ETS for Management
Between 1991 and 2008, approximately 27 lawsuits had been filed over smoking in multiunit housing, and judges have often sided with the non-smoker. The following information summarizes actual lawsuits filed by residents in various apartment dwellings throughout the United States. The data Presented can provide property management companies, residents/non-resident managers, and interested individuals with substantial facts to helps them make a safe living environment.
Donath v. Dadah et al. (No. 91-CV17, Worcester County, MA, Housing Court Dept., 1991)
On April 23, 1991, a woman sued her landlord. The plaintiff alleged she suffered asthma attacks, labored breathing, wheezing, clogged sinuses prolonged coughing bouts, and frequent vomiting due to exposure to secondhand tobacco smoke coming into her home from the second floor (where the tenants lived). The lawsuit against the landlord involved negligence, nuisance, breach of the covenant of quiet enjoyment, battery and intentional infliction of emotional distress. In Dec 1992, the case was settled for an undisclosed sum of money.
Fox Point Apt. v. Kippes (No. 92-6924, Clackamas County. OR, District Court, 1992)
A nonsmoking tenant sued her landlord for breach of statutory duty to keep the premises habitable, and the covenant of peaceful enjoyment (implied by common law in every rental agreement) after a known smoker moved into an apartment beneath hers. The six person jury voted unanimously in favor of the plaintiff (the tenant) finding a breach of habitability on the part of the landlord. The settlement reduced her rent by 50% and awarded the non-smoking tenant an amount of money to cover her doctor’s bill.
Gainsborough St. Realty Trust v. Haile et al. (No 022279, Boston Housing Court, 1998)
A nonsmoker living with her husband in an apartment directly over a smokey bar was sued by her landlord for not paying rent. The tenants had withheld the rent, alleging that the amounts of smoke seeping into their apartment deprived them of the quiet enjoyment of their apartment. The judge (Daher) ruled that the amount of smoke for smokers and nonsmokers alike. “The judge further ruled that “the evidence does demonstrate to the court the tenants’ right to quiet enjoyment was interfered with because of secondhand smoke that was emanating from the nightclub below.”
Snow v. Gilbert (No MIC94-07373 Middlesex County, MA, Superior Court, 1994)
Despite an earlier agreement not to rent the units to smokers, the landlord, who was about to sell his building, informed his tenants they could smoke in their apartments. A woman who suffered from pulmonary fibrosis and CREST (a form of scleroderma), and multiple chemical sensitivity fro secondhand smoke that seeped in from other units, won a temporary injunction against her landlord to prevent him from renting the units below her to smokers, at least until she succeeds in her efforts to find another apartment elsewhere.
Layton et al. v. Jolley et al. (No. NS004483 Superior Court of California, Los Angeles County , 1996)
A smoker was issued a restraining order by the court requiring him to stay away from his garage while smoking. The plaintiff brought harassment after repeatedly being exposed to ETS when the defendant smoked in his garage (located below plaintiff’s condominium).
U.S. Dept. of Housing & Urban Dev. (HUD) v. Kirk and Guilford Mgmt. Corp. & Park Towers Apts. (HUD No. 05-97-0010-8, 504 No 05-97-0005-370, 1998)
In 1996 two complaints were filed against Guilford Mgmt. Corp and Park Towers Apartments (a HUD-subsidized high-rise for elderly and the disabled) because the plaintiff’s respiratory condition became aggravated due to secondhand tobacco smoke entering her apartment the claims were filed under section 504 of the Rehabilitation Act of 1973, as amended, and the Fair Housing Act of 1968, as amended. In late 1997, a conciliation agreement was entered into by both parties and on January 1998, HUD approved it. Park Towers Apartments agreed to do the following:
- All newly rented units will go smoke-free;
- Violators of the no smoking policy who receive three written warnings within a one months period will be evicted; and
- Park Towers will ask the few smoking tenants of their willingness to relocate, because the transition from smoking units to nonsmoking will take several years.
Source: Sweda, Edward L. (1999). Summary of Legal Cases Regarding Smoking in the Workplace and Other Places. Tobacco Control Resource Center, Nuisance/Real Property, pp. 49-51.
Sample Survey Questions
Questions should cover the following subject areas:
- Tenants’ attitude about smoking;
- Smoking Rules within each household;
- Tolerance to secondhand smoke and smoking; and
- Preference/support for smoke-free complexes and establishing smoke-free policies within complexes.
Sample Questions:
1. Should smokers be allowed to smoke wherever they want?
2. Is it fair to restrict smokers from smoking in their own homes (units/apartments)
3. Should people have the right to choose whether or not they are exposed to to secondhand smoke?
4. Does secondhand smoke bother you?
5. Does it bother you if people smoke in common outdoor areas where you live, such as the swimming pool, playground or patios?
6. Does it bother you if people smoke in common indoor areas where you live, such as the club house, hallways, and laundry room?
7. Would you support rules that would restrict smoking in indoor smoking areas?
Did you know… As Nebraskans learn more about secondhand smoke, more and more tenants are searching for apartments with no smoking policies.
Sample Policy
The following language can be used to implement a smoke-free policy in a multi-unit dwelling. In apartment complexes, the provisions can be added to the lease. This is most easily done gradually, as new individuals apply to become tenants. For condominiums, the language can be added to the Conditions, Covenants and Restrictions (CC&R’s) and implemented immediately or at a specified future date.
The above content was adapted from "Providing health options for tenants", A Program of the American Lung Association of California, Superior Branch.
