How Do I Enforce a No-Smoking Policy?

by Chris on January 2, 2012

Q: How do you enforce a non-smoking policy? If current renters, who may have wanted a smoke-free unit, sneak smoking inside, what can be done?- TVS Landlord

You can enforce a no-smoking policy in the same way you enforce any of your lease policies–by offering a warning, and if the tenant does not comply, by evicting the tenant.

Because every eviction case is viewed on its individual merits, the way you implement your smoking ban will impact  how it is enforced.

For instance, if you have existing tenants who smoke at the time you implement the policy, you will need to “grandfather” them in–allow them and their guests to smoke throughout the term of the lease.

If an existing tenant says they want to go smoke-free, then you should amend the lease to add the no-smoking provision, and have your tenant sign it to make it enforceable.

Enforcement can also depend upon the scope of the policy.  Smoke-free housing advocates suggest thinking in terms of smoke-free buildings, rather than smoke-free areas within the building. Banning smoking everywhere on the premises is easier than carving out designated areas and attempting to keep the smoke away from other areas.

You will also want to have a standard policy for handling all infractions and train any leasing agents or managers to follow the policy. Typically, a violator receives one written warning. After that, they will face eviction on the grounds that they are breaking the lease, and interfering with the reasonable enjoyment or endangering the health of other tenants.

Make sure you have a system in place to document your no-smoking policy, and any violations that occur.

When advertising the unit, you will find that the no-smoking rule will attract prospective tenants. It also may help you in the case of an eviction, by proving that the tenant had notice of the policy before they moved in.

Write a policy statement for the rental agreement package that explains the no-smoking policy and that the tenant must abide by the policy or risk eviction.

In order to enforce the policy, it should be included in your lease agreement. While many smoke-free housing advocates provide free no-smoking lease agreements online, it is a good idea to have your legal counsel review the language.

A typical non-smoking lease provision will include at a minimum these five points:

1. The purpose of the policy is described — to go 100% smoke-free in order to eliminate secondhand smoke in or around the building.

2.Smoking is defined, typically as “inhaling, exhaling, breathing, or carrying any lighted cigar, cigarette, or other tobacco product in any manner or in any form,” or similar language.

3.The policy is extended to the tenants’ guests or other visitors.

4. A statement that smoking is prohibited inside the building, including private residencies, patios, balconies, and all around the residential property– for example, a buffer around doors.

5. A statement that by signing the lease, the tenant agrees that the premises are nonsmoking and to abide by the smoking ban or face eviction. Many landlords have the tenants initial this provision in the lease.

The rental application and lease agreement must be signed by each adult tenant in order to be effective.

Hang signs around the property to enforce the smoke-free zone.

In this case, if the tenant has signed a no-smoking lease agreement or an addendum to the lease, the best course of action would be one written warning followed by a reasonable time for the tenant to prove they will not continue to smoke in the rental property. The smoker does not have to quit smoking to comply — they just have to smoke somewhere other than the rental property.

If they continue to violate the policy, consider filing for eviction. Be prepared to present a copy of your policy, the signed rental application and signed lease agreement, and all documentation regarding the incident, including statements from other tenants if applicable.

If, on the other hand, the tenant in this case said they preferred smoke-free, but did not sign a no-smoking lease provision, your claim is greatly diminished.  You may be able to prove that the tenant knew about the no-smoking policy or that their actions are  interfering with the reasonable enjoyment or endangering others–not impossible arguments, but difficult at best. Your case may be stronger if you have evidence that other tenants wanted a smoking ban.

Your other option is to go back and implement the appropriate steps for a no-smoking policy, and negotiate with the tenant to sign a no-smoking lease addendum, which places you in a much stronger position going forward.

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.

{ 8 comments… read them below or add one }

Brian M January 3, 2012 at 8:14 am

Good article – looking ahead I wonder how to handle non-smoking tenants in a non-smoking building who become ill and who find an effective remedy is medicinal marijuana. Perhaps Landlord’s need to include something to cover this (no doubt) sensitive topic.
Cheers all,
Brian

Paul J January 6, 2012 at 3:11 pm

Fair comment Brian. Tobacco smoking is too specific. Actually, since I became a landlord I’ve felt the need for medical marijuana myself.

Leslie Tenant January 11, 2012 at 12:27 pm

The lease terms should specifically include balconies and outdoor areas to avoid misunderstanding.

Liz A February 9, 2012 at 8:48 pm

Interesting article… But what if your landlord isn’t specific? We just moved into our new place and the lease just has one statement under the “additional terms” section that states, “This is a non-smoking property there will be no smoking on or within the property.” I am a smoker and didn’t even see that last bit until I looked at it again a few days later (shame on me for not reading every word). But I have seen the addendums before so that’s what I would have looked for… wherever I’ve lived I have always smoked in my backyard/patio with all windows closed. Would doing so be a violation of my lease?

Anita September 7, 2013 at 7:53 pm

If the patio is within the property the yes you would be in violation of the lease.

Brandon September 4, 2014 at 3:53 pm

Go smoke on the street. Not a damn thing landlord can do then now can he? Sit in a chair out right off the edge of the curb and smoke all day long if you’d like. Landlords don’t own public streets. There’s lots of things they can put into leases. None of it matters until when/ if it all goes before a court. If I have to carry renters insurance there shouldn’t be an issue with my smoking in the house. Obviously the damage is insured, right? Right. So piss on the smoker haters.

warren January 2, 2016 at 7:20 pm

I realize this is an old post but was curious about something that I haven’t found the answer to anywhere. 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.

Brenda November 7, 2018 at 8:48 pm

I have asthma which I believe came on over years of apartment living around smokers (I’m a former smoker and now very sensitive to it). What can I do if the apartment community “manager” of a “transitioning to smoke-free” facility smokes? The words “smoke-free” and “no smoking in apartments” are in the application packet. Do I have any rights and who do I complain to? It seems that if the “gatekeeper” smokes, others have no rights regardless of any signs posted or application/lease wording.

I’ve been sleeping in my car to get away from noisy apartments (no sound-proofing) and smokers. Now, to have to pay again seems foolish to me especially when I seem to have no recourse.

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