Posted in Blog  
  on Sep 09, 2015

Outline of Tenant Rights for Smoking

Is smoking a right that tenants have in a rental unit? Although people have the choice to smoke, landlords have the right to protect their property from the damages that smoking may cause. This has become more pronounced as the dangers of secondhand and lingering smoke in a rental unit become more clear. Just about every state allows a landlord to designate their property as being smoker friendly or requiring tenants to be smoke free. Smoking does not create a protected demographic under the law in the United States and state laws don't generally recognize smoking as a protected right. This means a landlord can potentially reject an application from tenants who are admitted smokers.

What About Tenants Who Start Smoking After Renting?

The stresses of life can be overwhelming. A tenant might lose their job, be having family problems, or face other issues that can cause them to start smoking. When a property is designated as being 100% smoke free in a rental agreement, this generally means that no smoking may occur anywhere on the property. This includes outdoor and common areas, especially if there are No Smoking signs that have been posted. Some landlords may choose to designate a smoking area within the text of their lease for circumstances where non-smokers become smokers. This also means smokers cannot be rejected outright for their habits if designated areas are allowed, but it does provide a compromise that may open up more applications for a rental unit. Anywhere can become a potential smoking area on the property. If there are designated areas listed, then there must also be enforcement guidelines that discuss what happens if smoking occurs outside of those areas. That way there can be no questions should a lease violation occur.

What If My Lease Has Nothing In It About Smoking?

If there is no language within the rental agreement that restricts smoking, then landlords have no way of enforcing a smoke-free option. Tenants will have a right in this specific circumstance to smoke as much as they want, whenever they want. Evictions cannot occur from the act of lighting up a cigarette or a cigar. What a tenant cannot do, however, is damage the rental unit while they are smoking. Smoke damage is a very real issue and can be a way for a landlord to address the issue of smoking if it isn't specifically listed in the lease. Smoke odors may be in the carpet. Stains may appear on the walls. Landlords have the right to protect their property and if the habit of smoking causes damage, it may potentially lead to an eviction notice. It is important to specifically note in such a circumstance that the eviction is due to the property damage, not the act of smoking itself. An eviction notice for smoking when there are no rules listed in a lease against it will likely be considered an invalid eviction attempt and provide a tenant with an active defense. If smoking is not allowed, then the eviction process must follow the lease violation rules that are in place under local landlord/tenant law and not the non-payment of rent rules.

Should Landlords Just Be 100% Smoke Free?

With the number of lawsuits that are being filed by tenants who are claiming a rental unit is uninhabitable because of damage and odors that are caused by smokers, it may be wise to restrict smoking as much as possible. There may be a financial benefit in doing so since smokers are more likely than non-smokers to leave burn damage and cause fires within their living area. The damages that smoking can cause will add up quickly, especially if proper care of the habit is not taken by the tenant. For this reason alone, smoking should be considered something that should be eliminated from the landlord/tenant relationship. If tenants wish to smoke, their own vehicle is always a better place than your property. Unless it is specifically outlined in your governing laws, smokers are not a protected class. There are generally no tenant rights when it comes to smoking unless a lease does not specifically mention that it has been banned. Landlords may still be able to change this stipulation upon the renewal of a lease and then enforce it, however, so there is always an option to go smoke-free in almost every circumstance. People do have the right to decide to smoke. What a tenant does not have a right to do is damage your property, even if smoking is allowed. If landlords are consistent with their enforcement policies, rules about smoking, and the screening process, this will eliminate much of the confusion that surrounds this particular subject.


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