SMOKING BY RESIDENTS

Many managers are now setting aside certain units as “Smoke Free” or renting homes out and prohibiting smoking on all or part of the premises. Many residents do not want to rent a unit where the prior resident smoked, and in many units, smoke travels through the premises interfering with the rights of other residents. Restricting a person’s ability to smoke on the rental premises in full or in part is not prohibited by law. The lease needs to clearly spell out the restrictions, and the challenge to the manager will be enforcement and proof.

Smoking Prohibitions and the Law

There are no laws, state or federal, that prevent a manager from prohibiting smoking in a rental unit, house or designating a building as smoke-free. There are no laws that prohibit a manager from designating certain areas as “smoking areas” or limiting smoking in the common areas.

Smoking Prohibitions and Fair Housing

It is not illegal discrimination to create a smoke-free policy, smoke-free units or smoke-free areas, as smoking is not protected under law. It is important to note that creating a smoke-free policy should never be used to target a protected class, as this can trigger a discrimination action and potentially be considered illegal. Residents who are affected by second hand smoke actually may be able to sue your company under the Americans With Disabilities Act and the Fair Housing Act for discrimination, if they have breathing disorders and you do not make accommodations for them in their rental premises, or the common areas in the event they have health issues which are being adversely effected by secondhand smoke.

The Benefits of Smoke-Free Units

1. Reduced risk of fire and injury. Lighted tobacco products cause over 15,000 residential fires, over 500 deaths and over 1300 injuries due to these fires, and over $300 million dollars in property damage each year.

 

2. Litter reduction. Your maintenance personnel will attest to the fact that cigarette butts accumulate and remain on the premises for a long time. Residents routinely will throw the cigarette butts on the ground, in the garden areas and all around the common areas. These cigarette butts pose a threat to small children and animals that may place them in their mouths and ingest them.

 

3. Better health. Cigarette smoke travels through walls, ceilings, floors, electrical conduits and HVAC systems. This exposes other residents to secondhand smoke, and these residents then suffer health hazards and inconvenience.

 

4. Decreased damage to property. Smoking damages walls, ceilings, carpet, furniture and can deposit a layer of tar on just about any surface with which smoke comes in contact, in addition to increasing the likelihood of carpet, flooring and counter burns. Often smoking related damage requires a substantial expenditure of funds to remove staining and odors, and to otherwise repair the unit.

 

5. Reduced liability. Americans With Disability Act and Fair Housing complaints are rising each year. Accommodating residents who do not want to be affected by second hand smoke and/or reducing the exposure of a resident to second hand smoke will reduce your liability. In addition, a resident has common law remedies, including the implied warranty of habitability and that the peaceful, quiet enjoyment of the premises is being interfered with. Smoke infiltration from another unit may qualify as a violation of the common law rights, and we have seen residents break their lease due to smoke infiltration.

Creating the Smoke-Free Unit or Building

1. Current residents. You cannot prohibit a current resident from smoking, if there is no prohibition in the lease, or the resident has failed to sign a no smoking addendum after the lease has been signed. A non-smoking resident who has already signed a lease may be willing to sign a no smoking addendum, and this can speed up the conversion of a building to non-smoking units.

 

2. New residents or renewals. If your new lease or addendum prohibits smoking, you can prohibit a new resident and their occupants from smoking, or refuse to renew a lease if a current resident refuses to sign the new lease or addendum.

 

SAMPLE LEASE WORDING

”Resident agrees that Resident, guests and/or occupants will not smoke or ignite any tobacco, clove, incense, or other legal or illegal smoking product on the premises. The premises for the purposes of this section includes the interior or the apartment, the breezeway outside the apartment, and any lanai or balcony if provided. Smoking for the purposes of this section is defined as igniting, inhaling, exhaling and/or carrying any lighted legal or illegal smoking product. In the event Resident, guests or occupants violate this smoking policy, Resident shall be in breach of the lease agreement and subject to eviction action, in addition to being liable for any damages to the premises cause by smoking or costs incurred by Manager in removing smoke odor”

Note: The above sample clause is for a complete smoking prohibition. The clause can be modified to allow lanai smoking, smoking areas or other variations.

Practical Considerations

While smoking can be prohibited in the lease agreement or addendum, enforcement is always going to be a problem. We all know that residents often will not do what they are “supposed” to do or what they “agreed” to do in the lease. A no smoking clause is a start though, if you wish to create a smoke-free unit or building, but proof will become an issue in the event of a violation or violations.