Can Landlord Enforce Non-Smoking in an Individual Unit?

by Chris on January 4, 2016

Q: How can a landlord find out if a person is smoking inside their unit? Are there special detectors you can install that will register the tobacco smoke? Do you have to actually catch them smoking or is just the smell of smoke from their apartment enough? I think a smoke-free building would be great, I just can’t see how easy it would be to keep tabs on people inside the units.

This is a common concern for landlords, many of whom are afraid that going smoke-free will only increase the workload of managing tenants.

There is, in fact, a detector that is designed to capture cigarette smoke. FreshAir Sensors, a New Hampshire company founded by a chemistry professor, is set to launch its AirGuard product in both hand-held and plug-in versions. These detectors can record infractions and send an e-mail alert if a tenant lights up. The products should be available this spring.

tenant screeningHowever, there is no need to wait on a detector to move forward with your desire to convert the building to smoke-free.

Cigarette smoke produces a unique, telltale odor. Chronic smokers will produce residue that actually will appear on windows and permeate any fabrics.

It is unlikely that you would have to catch the tenant with a lit cigarette on their lips in order to prove an infraction of the non-smoking policy. Just be diligent about recording what you do discover.

The benefits of smoke-free housing are significant:

Shorter vacancies;
Cheaper maintenance costs;
Few apartment fires; and,
A larger pool of quality tenants.

Don’t let the fear of enforcement hold you back from moving along with your plans. There are several effective strategies to employ that will reduce the likelihood of renting to a tenant who will break the rules.

It is perfectly appropriate to advertise to new tenants that you are converting to smoke-free housing, and to ask incoming tenants if they are willing to abide by those rules. Applicants who smoke or won’t agree can be rejected.

During tenant screening, it is possible to ask the current and previous landlords if the applicant smokes or previously violated a smoking ban.

The lease agreement can contain language that outlines the tobacco restrictions and remedies for breaking the rules, including eviction of the tenant. Be sure that the rules apply to your tenants’ guests as well.

Routine property inspections are key to catching a smoker before they’ve had a chance to increase your costs or liabilities.

If you do encounter a secret smoker and move to evict, you will need to detail your non-smoking policy, and prove that you followed your own rules.

For instance, the lease or non-smoking addendum must provide that smoking in an individual unit clearly is prohibited. Often, a non-smoking policy requires a warning for a first infraction. In that case, be prepared to prove that a warning was offered.

Also, the non-smoking provisions must be in that tenant’s lease, rather than a new policy that was added after the tenant moved in. In most cases, previous tenants are ‘grandfathered’ and the smoking prohibition can only be enforced if the old tenant agrees or renews the lease.

Anytime you are handling a problem tenant, it’s important to remain professional and encourage the tenant’s good behaviour before you make threats.

The first time there’s an infraction, it’s acceptable to simply remind the tenant that there is a non-smoking rule in place and that the rule is there for a reason, such as tenant safety or that other tenants moved into the building specifically because of the smoking ban.

Let the tenant know that you value them and want them to stay. Ask for their cooperation. Otherwise, if they feel hurt or rejected,  you may eventually lose an otherwise good tenant. Bad feelings also can lead to late rent payments or property damage.

Hopefully a warning will do the trick, but if the infractions continue, you may have no choice but to pursue the remedies that you’ve set out in your lease agreement. Although this is costly, the vast majority of tenants want smoke-free housing, so the policy will win in the long run.

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).

Click Here to Receive Landlord Credit Reports.

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 }

Sue Wise September 16, 2017 at 8:12 am

Our landlord put out a no smoking ban on our complete complex. They, on a flyer put on your door, stated a 250 fine. My lease was signed last Jan. They are handing out fines, when someone smells smoke, they come in their carts and find an apartment that it could be, and attaches 250.00$ more on your lease. Besides not having anything specific in my lease, how can they fine you without any proof you are smoking on your belcony. You can’t just say, I smelled smoke in the area of your apt, and you are fined. They must have to have some kind of proof, ex: a picture ? The sidewalks outside the complex is becoming like a ghetto. Full of beer cans, butts, and dog poop now. They are getting paid back in spades. Several empty Apts, littered perimeter, and very unhappy tenets. I know smokers have no rights as a group, but being stalked to get caught smoking is going to far.

Kelley November 26, 2017 at 6:42 am

I am going through the worse landlord tenant situation of my life. My fiance and I moved into a studio apartment last month. We were homeless for 6 months prior because our landlord sold our rental house. I have always enjoyed a great landlord tenant relationship in the past. I love fixing up properties and love to take care of them. As my previous landlord told me I’m a landlords dream.
The first night we stayed here I had burned some frankencense to mask the odor in the bathroom. (it is disgusting and I believe the floor has never been cleaned). The next morning the I was making breakfast and the breaker blew. The landlord’s husband came by to flip the switch as it’s located in the locked basement. He said that he had complaints from other tenants saying the smelled cigarette smoke. When I brought it to his attention that I had just burned incense he stated that that wasn’t what he smelled and it WAS cigarettes. The next day we received a warning in the mail. Not think much of it I just went about my daily life.
3 days ago I had burned frankincense again. This time to get rid of the skunk odor from the people next door who smoke weed. (btw…the people next door start getting loud every night starting at 10pm and lasting until 3 or 4am. When my fiance complained via a text message he was told “everyone has different schedules” even though it states in the lease no loud noise after 11pm. Anyway, they again came by stating that they had complaints that we were smoking cigarettes. This time I was stood my ground. I told them there I was not smoking! The husband said that the last time he was here his coat smelled like cigarettes when he left. He also stated that he was a former smoker and he knew what cigarettes smelled like. This time I was burning the frankincense in a small pie tin and the coal was still hot. When I showed him and asked if that could be what their smelling he flat out refused to believe it. The landlordess then called my fiancee and he told her the same thing. WE DO NOT SMOKE IN THE APARTMENT!! Yesterday we received a letter of eviction stating we broke the lease because we are smoking in the apartment.
This is a nightmare!!! When my fiancee brought up the fact that the people next door were smoking pot she said “maybe they have a medical marijuana card”. This is nuts! Is there a company that can preform a test in my home that could tell if anyone has smoked in here? I’m going to go to the people across the street and next door to see if they would write a letter saying that they see me out side smoking. The police had to come here the first week we were here because of a domestic disturbance and the police also saw me smoking outdoors. What can I do to protect my rights?! This has caused my fiancee and I a unbelievable amount of stress.

Lynn June 20, 2020 at 5:55 pm

What happened with eviction request? Did you fight and wi ?
Sometimes the real troublemakers do a bait and switch thing
To poi t the blame toward you , to confuse the landlords, and take away the focus on their bad behavior . That’s what’s happening I thi k.
And assumptions get escalated , landlord is believing neighbors tall tales, so it compounds and hard to overcome this.

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