Q: I would love to include smoking ban rules in my new lease agreements, but I thought it was against the law due to discrimination. – TVS Landlord
This is a very common concern, perhaps because landlords have been trained to be extra-vigilant about discriminating against tenants.
Smoking tobacco is not considered a right, and smokers as a whole are not afforded protections under the discrimination laws. In fact, the opposite is true. 
For instance, a landlord may have to resolve a ventilation issue as reasonable accommodation to protect a tenant with a disability from a tenant who smokes.
Several recent court cases point to secondhand smoke as a violation of the covenants in the lease regarding habitability and quiet enjoyment. Add to that the fact that many cities and states are imposing smoking bans in multifamily properties, and the way is clear for a private landlord to implement a nonsmoking policy.
There is however, one area of legal protection for smokers. That involves the situation where current tenants smoke. If the existing lease does not ban smoking or track the proposed smoking ban, it is unlikely that a landlord can impose stricter rules on those tenants without breaking the lease — and being liable for breach of contract.
The way around this problem is to implement a smoking ban that applies to all new leases, and to any tenant who agrees to modify their existing lease. Other current tenants will have to be “grandfathered” — allowed to smoke until their lease term runs. Depending on the language of the lease, the landlord may refuse to renew those leases as they mature.
Some cities and states now require disclosure of the landlord’s smoking policy for all new tenants. But these laws are not designed to protect smokers, rather non-smokers who want to know if they will be exposed to secondhand smoke at the property.
The benefits of a smoke-free policy are tremendous. Landlords who have taken the steps are reporting lower costs and higher tenant retention. Because it takes some time to convert the property to non-smoking, the best strategy is to get started right away.
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Disclaimer: The information provided in this post in not intended to be construed as legal advice, nor should it be considered a substitute for obtaining individual legal counsel or consulting your local, state, federal or provincial tenancy laws.
