A friend of mine in the real estate industry called me the other day and asked me if it is legal for a landlord to prohibit smoking in an apartment. She was concerned about fair housing laws, and with good reason. Real estate agents need to be extremely careful about what they put into a listing for lease to make sure it does not violate those fair housing laws. Luckily, smoking is not classified as an immutable characteristic of birth and “smokers” are not a protected class under fair housing, so a landlord can implement a “no smoking” rule.
That raises a threshold question. Can a landlord even prohibit smoking? After all, this is a free county, isn’t it? Can’t a tenant do what they want in their rental unit? Well, no. A landlord has the right to regulate smoking. The rental premises is the landlord’s private property and the landlord can make rules that don’t violate other laws. There is no constitutionally protected right to smoke! In fact, HUD actually encourages Section 8 landlords to adopt smoke-free building policies in the HUD Smoke Free Housing Toolkit.
Plenty of prospective tenants might actually want to rent a “smoke-free” apartment unit or to live in a smoke-free building. There can be benefits to the landlord. A smoke-free unit will likely have less exposure to fire hazards and will conceivably have lower clean-up costs when a unit turns over. In addition, the Americans With Disabilities Act or fair housing laws might even require a landlord to make a “reasonable accommodation” to a tenant who needs to be away from smoke.
Like with any other leasing rule, a landlord should think through the implications of a no smoking policy and the best way to implement the policy. Does the prohibition apply to all units in the building or just a portion of the units? Can a tenant smoke anywhere on the property such as on a deck or in the outdoor common areas? Will the rule be enforced with fines or an eviction? Landlords need to be prepared to enforce the rules in an evenhanded way or they might find themselves in hot water with other tenants who relied upon the smoke free nature of the rental property. Worse yet, the failure to enforce might even allow a smoker to claim that the landlord “waived” the right to prohibit the activity.
Landlords dealing with the smoke issue might also consider some other smart practices like placing no-smoking signs in the common areas and outside of the building, performing enforcement inspections, or even providing smoking areas for tenants who do smoke. As with most landlord tenant issues, this one can cause a bit of excitement in landlords and tenants and smart landlords will regularly evaluate how their smoking policy fits in with their overall management of their rental property.