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It is getting harder and harder to find a place to smoke cigarettes. Smoking is not allowed in many workplaces; in many retail establishments like stores, restaurants and bars; and in many public places.
Sometimes, you just want to get into your own personal space, where you make the rules and you can smoke if you want to. After all, smoking by adults is legal private behavior.
If you own your own home, you can smoke with impunity. If you rent, however, your ability to smoke in your own residence is governed by the lease you signed with your landlord.
No Legal Right to Smoke
Contrary to popular belief, there is no legal right to smoke cigarettes. 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 excess noise.
Landlords can evict smokers who violate a non-smoking 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 for landlords to ban smoking in apartment units include fire hazards, fire insurance premiums and extra cleaning costs.
Landlords Make the Rules in Rental Units
To prohibit smoking in a rental unit or house, a landlord must state this prohibition in the lease. If the issue of smoking is not addressed in the lease, the landlord cannot prohibit smoking until the lease is up and a new lease (which specifically forbids smoking) is created.
Such restrictive leases often prohibit smoking on private terraces and balconies, where smoke can waft from one unit to the next.
It is relatively easy for landlords to restrict smoking in common areas, such as lobbies, hallways, parking lots, laundry rooms and around swimming pools. They must provide reasonable notice to tenants of the no-smoking policy (usually 30 days); describe what areas are to be non-smoking; and post signs in those areas. The landlord may also designate specific areas where smoking is allowed.
Some Governments Ban Smoking
Many states and municipalities prohibit smoking in the common areas of multi-family housing. Additionally, some communities are now adopting ordinances to require no smoking in all or a certain percentage of the private units of multi-family housing.
What about Co-ops and Condos?
In a co-op, no-smoking rules can be passed by a majority of the co-op board. In condos, such a ban usually requires a change in bylaws, approved by two-thirds of the residents. Fines might be $150 for a first offense, with fines increasing by $150 for each additional offense.
An Evolving Area of Law
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.
Call a Landlord Tenant Lawyer
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, please contact a landlord tenant lawyer.