Are Smoke-Free Rentals Discriminatory?

by Chris on January 20, 2014

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. tenant screeningFor 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.

This post is provided by Tenant Verification Service, Inc., helping landlords reduce the risks of renting with fraud prevention tools that include Tenant Screening, Tenant Background Checks, (U.S. and Canada), as well as Criminal Background Checks, and Eviction Reports (U.S. only).

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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.

{ 3 comments… read them below or add one }

Rich R January 21, 2014 at 9:04 am

I couldn’t agree more with this post and it’s even more relevant with the release of the latest report from the surgeon general on the vast range of diseases that are cause or exacerbated by tobacco smoke and second-hand smoke. To these I would add that smoking and smokers cause fires.

This article reminded me that I need to update my lease form and rules to make it clear that the smoking ban applies to “vaping” using electronic cigarettes.

Carl January 29, 2014 at 4:39 am

The interests of smokers and non-smokers often conflict. Many state and local governments have restricted smoking in various areas and to various degrees. If there is a condition that doesn’t permit you smoking in the rental property then you can do it. People should read their lease, when you sign the lease that says that smoking is prohibited you agree on these terms and have to follow them. I also read this line in my lease when I was going to rent an apartment. We should remember that smoke can go from other apartments and travel through doorways, electrical lines, windows, plumbing, and ventilation systems, this way exposing non-smoking tenants to the harms of secondhand smoke.

cpzirk February 14, 2014 at 9:12 am

Rich R Just so you know “vaping” or electronic cigarettes DO NOT qualify as smoking. They are exempt from municipal smoking bans, a person can eve “vape” on a bus, r INSIDE a mall/store. normally the odor left by these devices is actually pleasant (depending on the flavor I suppose). They als DO NOT increase chances of fire by using these devices. In all technicality these devices are no different than a humidifier. just because you dont approve of something does not mean you can discriminate against an individual (smoking exempt, and the exception of new york, Utah, New Jersey and North Dakota) once the FDA regulates them that may even change!

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