How to Handle a Secondhand Smoke Complaint

by | Sep 9, 2013 | Rental Property Management Tips

The appeal of smoke-free apartments continues to grow. Currently, there are more tenants seeking smoke-free housing than there are nonsmoking units available to rent.

Studies, like one conducted by Smoke-Free Housing BC,  show as many as 86% of respondents are non-smokers, and 84% of BC households do not allow smoking inside their homes. Similar studies have shown that even a majority of smokers approve of smoke-free housing. At the same time, new research and information about the dangers of secondhand smoke is being widely publicized to consumers.

tenant screeningCourts now routinely recognize secondhand smoke as a legitimate health concern. If a tenant does get sick from unwanted exposure in a rental property, the landlord could face legal liability.

Awards for secondhand smoke injuries are growing larger. Claims that have been successful against landlords include human rights violations,  nuisance, constructive eviction, violation of the implied covenant of quiet enjoyment, negligence, and violation of the implied warranty of habitability. Damages have included medical bills, loss of enjoyment of life, and rent abatement.

Landlords should expect to receive an increasing number of complaints regarding secondhand smoke, and learn to deal with the issue effectively in order to limit liability and potential income loss.

The most cost-effective approach is to take a tenant’s complaint seriously, and to search for a resolution early in the process — before the tenant seeks legal help.

If a smoking ban is in effect, a complaint is easier to resolve. For instance, the lease may provide that if a tenant or a guest violates the ban, the landlord may offer one warning, and then move to evict if there is a second infraction. Smoking may be prohibited by local law.  In that case, the tenant may be subject to eviction for the violation.

In cases where the landlord has not adopted a no-smoking ban, and there is no local prohibition against smoking, the situation is trickier. Arguing that the lease does not prevent secondhand smoke exposure does not relieve the landlord from liability if a tenant gets sick. The landlord will have to determine if a particular tenant’s smoking on the property is grounds for an eviction. If not, structural changes to the unit or building may have to be considered if secondhand smoke is impacting adjacent units.

Avoid leaving tenants to deal with one another directly to resolve these problems. It is better for the landlord to mediate the dispute.

Be aware that tenants who have or develop disabilities that are affected by secondhand smoke may be protected under discrimination laws. That means the landlord could be liable for making ventilation upgrades or changes to policies regarding common area access. Failing to provide the appropriate accommodation can result in significant fines.

If a resolution cannot be reached, the best practice may be to allow the victim to break the lease with no penalties.

It can be helpful to know where most of your tenants stand on the issue of smoking. Conduct a survey or speak with tenants to get a sense of what smoking policy they’d like to see implemented.

As with all tenant complaints, keep good documentation, just in case.

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.

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