Real Estate

Can I Smoke in My Own Apartment?

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It is getting harder and harder to find a place that allows cigarette smoking. Many state and local laws prohibit smoking in workplaces; retail establishments like stores, restaurants, and bars; and public places. In addition, a tenant’s right to smoke in his or her rental home is governed by the lease you signed with your landlord.

Tenants Have No Legal Right to Smoke

Since smoking is a choice and not an inherent characteristic (like race, age, or disability), smoking prohibitions are not considered discriminatory under the law and smokers are not a protected class. Landlords can prohibit smoking the same way they can prohibit pets, waterbeds, or excessive noise.

Landlords can evict smokers who violate a nonsmoking lease agreement, just like they can for any other lease-breaking activity.

Secondhand smoke is a recognized health hazard. Since it can migrate from one rental unit to the next, it is often cited as the reason for smoking bans. Other reasons landlords ban smoking in apartment units include fire hazards, fire insurance premiums, and extra cleaning and repair costs.

Landlords Make the Rules in Rental Units (But Must Comply With Local Antismoking Restrictions)

Many cities prohibit tenants from smoking in multi-family properties (either in all units or just common areas). Also, some homeowners’ associations set similar restrictions on residents. Landlords need not include these smoking prohibitions in their leases, but it's a good idea to do so, to make it absolutely clear to tenants (and their guests). In the absence of an ordinance or condo association rule that prohibits smoking in a rental unit or house, a landlord must state this prohibition in the lease or rental agreement. Some leases allow smoking in rental units, but prohibit smoking in areas where other tenants may be affected, including common spaces, such as lobbies, hallways, parking lots, laundry rooms, and around swimming pools. The lease may also designate specific areas where smoking is allowed.

If the issue of smoking is not addressed in the lease or rental agreement, the landlord cannot prohibit smoking until the lease is up and a new lease (which specifically forbids smoking) is created. In the case of a month-to-month rental agreement, the landlord must give proper notice, which is specified by state law (30 days in many states).

The Law Is Evolving When It Comes to Rights of Nonsmokers and Smokers

Landlords who allow smoking and tenants who smoke have been sued on the basis of nuisance, breach of statutory duty to keep the premises habitable, breach of the common law covenant of peaceful enjoyment, negligence, harassment, battery, and intentional infliction of emotional distress. Sometimes the nonsmokers prevail, other times they do not. There is no trend.

Tenants with certain disabilities are protected from secondhand smoke under the Americans with Disabilities Act and the federal Fair Housing Act, as well as state and local regulations. Other unclear areas include a tenant’s use of e-cigarettes, which do not emit smoke, and the use of prescribed medical marijuana. In all of these areas, the law is a moving target.

For current information, check the Americans for Nonsmokers’ Rights’ website.

A Landlord-Tenant Lawyer Can Help

The issues surrounding the rights of a tenant to smoke in his or her own apartment can be complicated. Plus, the facts of each case and the laws in each state are unique. This article provides a brief, general introduction to the subject. It is not legal advice. For more detailed, specific information about your situation, contact a landlord-tenant lawyer.

Questions for Your Attorney

  • Marijuana is legal in my state, but my lease prohibits tenants from smoking pot in my apartment. What are my rights in this area?
  • The leases for tenants in my building prohibit any smoking in apartments. I know the tenant next door smokes, because I can smell it. I told my landlord, but he’s not doing anything about this. I have asthma and I’m worried about my health. What are my rights?
  • My roommate recently started smoking and I hate it. I’d like her to leave, but she says I can’t force her to move out because her name is on the lease and our landlord allows tenants to smoke in their apartments. How can I resolve this situation (short of moving out, which isn’t an option)?
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Day & Johns, PLLC

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