Risks and Realities of Smoking and Real Property Tenants
by Jacque Petterson
It is not only legal, but advisable, to ban smoking in apartment buildings
Tobacco smoke cannot be contained within the bounds of one apartment. It travels through walls, cracks, around windows, doors, plumbing and electrical fixtures. There are no repairs or air filtration systems that can eliminate the chemicals in the smoke that cause physical harm. The secondhand smoke fills neighboring apartments causing and exacerbating illnesses such as asthma, COPD, emphysema, cancer and heart conditions.
Landlords across the United States are receiving complaints from residents who are going to emergency rooms and taking heavy prescription drugs because their breathing and health has been compromised by a neighbor’s smoke – arguably a breach of the warranty of habitability. Landlords can no longer ignore the need to ban smoking in at least some buildings. Attorneys must prepare to advise their landlord and tenant clients that smoking can be prohibited in common areas, buildings, grounds and inside apartments.
Most landlords, apartment community management companies, and even many attorneys believe it is illegal and/or discriminatory to ban smoking inside apartment homes. There is no law that prevents a property owner from banning smoking anywhere and everywhere on their property. Discrimination, according to the Federal Fair Housing Act, is based on race, color, religion, sex, family status, national origin, or disability. Smoking renters are not a protected class. Smoking is not a fundamental right.
Violation of the Fair Housing Act
According to the Joint Statement of the Department of Housing and Urban Development and the Department of Justice, anyone with a previously diagnosed health problem that involves breathing is to be given a reasonable accommodation. Because the smoke cannot be stopped from entering their apartment when a neighbor smokes, and the smoke restricts breathing, the only reasonable accommodation for these renters is to live in a 100% smoke-free building. Recently in Florida charges were filed by HUD after a landlord refused to accommodate a resident in low income housing when she requested to be moved away from a smoking neighbor.
In 2009 HUD sent a notice to all housing authorities in the U.S. encouraging them to implement smoke-free housing policies.
Liability, Litigation
Potential causes of action for lawsuits against landlords include, but are not limited to, breach of the warranty of habitability, personal injury, breach of contract and constructive eviction, nuisance and violation of the Federal Fair Housing Act. Litigation has forced landlords to provide a smoke-free building for their residents.
All leases contain language similar to: “PROHIBITED CONDUCT. You and your occupants or guests may not engage in the following activities: … disturbing or threatening the rights, comfort, health, safety, or convenience of others…bringing hazardous materials into the apartment community;…” Landlords should be advised that secondhand smoke is a safety threat and nuisance for other renters.
If a child with asthma moves in to a previously smoked-in unit that was not properly refurbished or over or next to a smoking resident the family may be forced to move, claiming constructive eviction.
Fire danger is another reason to advise a landlord to ban smoking in their apartment buildings. According to the U.S. Fire Administration “The leading four items first ignited (upholstered furniture, trash, mattresses, pillows, and bedding) accounted for nearly half (49%) of residential smoking fires.” When elderly residents on oxygen continue to smoke landlords should require 24 hour supervision to avoid the potential loss of life and property.
Another area of concern is the effect on employees who enter a smoked-in apartment. It is well documented in the Surgeon General’s Report of 2007 that first and secondhand smoke causes cancer, asthma, heart disease and other health problems.
Turnover and the Bottom Line
Property management companies have complained that asking them to ban smoking in some buildings is a hardship. In truth it simply amounts to creating a few No Smoking signs, a letter explaining why smoking will be banned and requiring the residents’ signatures on a No Smoking Addendum. Enforcement will be through complaints. Just as with a pet policy, eviction may be necessary if a renter chooses to ignore the policy. Landlords that have transitioned some buildings to smoke-free say they have few problems overall.
The cost of properly renovating a smoked-in apartment, depending on how long the smoking resident lived there, has been estimated as high as $15,000. This may include replacing carpet, cleaning or replacing cabinetry and appliances. Even sheetrock may need to be replaced if the smoke is heavily embedded in the walls.
The cost to landlords in turnover when ignoring a non-smoking renter’s health problems and choosing to retain the smoking renter, doesn’t make sense for their bottom line. The smoking renter continues to damage the property and run off good renters that take care of their apartments.
Do your properties have a smoking ban?
Have you faced issues with tenants who smoke or who live adjacent to those who do?
About the author: Jacque Petterson is the office manager with the Petterson Law Office in Helotes. While working for Property Company of America, Ms. Petterson managed one of the largest apartment complexes in San Antonio. She developed adult-onset asthma after working and living adjacent to people who smoked, which led her to begin working with the Smokefree Apartment House Registry in Los Angeles.
Ms. Petterson continues to immerse herself in research and education and consult with renters, condo owners, property management companies, and property owners all over the United States. She has meet with and educated associations from California to South Carolina and elected officials from city councils to U.S. Senators. Ms. Petterson will be presenting "Smoking in Multi-Family Housing and the Law" in San Antonio, TX on November 30, 2011.
