A tenant smoking is perhaps one of a landlord’s worst nightmares. Smoking has several negative effects, both actual and perceptual, which is why it gets such a bad rap. But, how can landlords handle smoking in rentals anyway?
Do Tenant Smoking Rights Exist?
While tenants’ rights are something landlords should uphold, smoking isn’t one of them. There is no such thing as a tenant’s right to smoke. Currently, no federal or state law gives individuals the freedom to smoke wherever and whenever they wish.
Some might bring up the Fair Housing Act, but it does not apply to this particular situation. The Fair Housing Act prevents discrimination on the basis of certain protected classes. Smokers, though, are not a protected class. And a ban on smoking is not considered discriminatory in the eyes of the law. There are several federal, state, and local laws that support smoking bans.
Why Landlords Dislike Tenants Smoking in Apartment
To some people, a complete ban on smoking in rental properties may seem like an overreaction. But, there are very real consequences that the activity brings. Here are the top reasons landlords impose no-smoking policies.
1. There Are Health Concerns from Secondhand Smoke
Secondhand smoke is a major reason why landlords restrict smoking. According to the CDC, exposure to secondhand smoke can increase lung cancer risk by 20-30% in non-smoking adults. It causes more than 7,300 lung cancer deaths every year in the United States.
2. It Stains and Smells
Tobacco and marijuana have distinct smells that many find unpleasant. And these are smells that still linger around long after the smoke has settled. With repeated use, smoking can even leave cushions, carpets, and curtains smelling like tobacco. If that’s not enough, the nicotine can also stain furniture and upholstery.
When the smoking tenant eventually moves out, the landlord must replace the affected furniture and fixtures. This creates an undue burden on the landlord, not to mention added costs.
3. It’s a Fire Hazard
Smoking is a fire hazard — it’s as simple as that. Tenants may fall asleep with their cigarettes still lit. This can burn the furniture and upholstery. Worse yet, it can start a fire and put everyone at risk.
4. It Raises Insurance Premiums
Insurers believe there is a higher risk of fire when a landlord allows smoking on the premises. As such, they will charge a significantly higher premium for fire insurance than landlords who don’t allow smoking.
5. There Is Potential Liability
Finally, smoking makes landlords more vulnerable to potential liability. There have been many cases in the past where a tenant sued a landlord for permitting smoking. The lawsuits were primarily based on two legal grounds: nuisance and an uninhabitable home.
Smoking is widely regarded as a nuisance because the odors can irritate other tenants. The odors, health concerns from secondhand smoke, and increased fire risk can also be used to argue that a landlord is violating their duty to keep the property habitable.
Can a Landlord Stop a Smoking Tenant?
Landlords can easily cite smoking bans that exist in their area. But, not all smoking bans apply to rental properties, and not all cities have such bans in place. Even without a smoking ban, landlords can generally prohibit smoking on the premises, even inside individual units.
Of course, it is essential to note that such a restriction should be written into the rental or lease agreement. Absent such a clause, a tenant may argue that there is no rule against smoking. No-smoking clauses generally apply to smoking of any kind. This includes tobacco and marijuana.
If the lease agreement does not contain a no-smoking clause, it gets tricky. Landlords usually can’t introduce new rules in the middle of a tenancy. The only exception is if the tenant consents to the change, which must be done in writing. Otherwise, if the fixed-term lease has yet to expire, a landlord can’t create a new policy and add it to the lease.
As for monitoring smoking on the premises, landlords can install smoke detectors in individual units. Many smoke detectors nowadays are sensitive enough or specifically designed to pick up cigarette smoke. The alarm then alerts the landlord of the breach.
For common areas, landlords can install similar smoke detectors and security cameras. However, landlords should keep privacy laws in mind when installing security cameras. The cameras should never be installed or pointed at any place where people reasonably expect privacy. This includes bathrooms, shower rooms, and windows, among other things.
Can You Evict a Tenant for Smoking?
Smoking is not only an unhealthy habit, but it can create all sorts of problems for landlords. Thus, it does not come as a surprise that many landlords consider evicting a tenant smoking. But, can a landlord even do this?
The first thing you must determine is whether or not smoking is permitted. Are tenants allowed to smoke as per the lease agreement? If the agreement does not include a no-smoking policy, then the landlord may not be able to evict on the grounds of a lease violation. But, if the agreement has a no-smoking clause, the landlord can evict the tenant based on a breach in terms.
Not all landlords immediately jump to eviction, though. When a tenant violates the clause, landlords usually start by sending a no-smoking letter to tenants. From there, tenants can remedy the situation, with the landlord only pursuing further action (eviction) if the tenant continues or violates the terms again.
What About E-Cigarettes and Vaping?
Some tenants might argue that the no-smoking policy does not cover e-cigarettes or vapes because they are not technically “smoking.” E-cigarettes and vapes let out vapor or aerosol instead of smoke. However, these can also have detrimental effects on the property and other individuals. That said, it is a good idea for landlords to update their leases to include e-cigarettes and vaping under their no-smoking policy.
Clear Communication Is Key
Dealing with a tenant smoking is never a pleasant experience. But, when the time comes, you want your side to be supported and protected. As such, if you don’t want tenants smoking on the premises, make it clear right from the get-go and ensure your lease agreement reflects this policy.
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