Smoke Free Housing

Smoke Free policies are quickly becoming the standard for multi-unit housing in the U.S.^[1]

Smoke free policies do not ban a smoker from renting or make the smoker quit; they only state that a smoker cannot smoke while on the property or smoke only in designated areas.

Reasons for Smoke Free Policies:

Smoke-free policies protect residents.

In 2010, the U.S. Surgeon General released a report stating there is no safe level of exposure to tobacco smoke. Health effects of tobacco smoke exposure include cardiovascular disease, respiratory infections, asthma, bronchitis, stroke, ear infections and Sudden Infant Death Syndrome (SIDS).

Smoking is the leading cause of home fires and the number one cause of fire deaths in the United States^[2]

Cigarettes cause approximately 1 out of 4 fires and these fires kill 700-900 people every year, many of those killed are children and the elderly.(3) Property losses from smoking-material fires total hundreds of millions of dollars every year.  Maintenance and cleaning costs are reduced when smoking is banned

Ventilation is Not a Solution.

 

According to the American Society of Heating, Refrigeration and Air-Conditioning Engineers (ASHRAE):

• There is no known ventilation or air cleaning system that can eliminate all the toxins from another resident’s smoke. 

The federal Fair Housing Act (FHA) implies that landlords are to provide a safe and habitable environment to protect tenants.(5) This means handling all unwanted nuisances such as noise, poor ventilation, heating and secondhand smoke exposure that substantially affects the tenant’s enjoyment of the premises.

• The Americans With Disabilities Act and the FHA state that no one can be discriminated against in workplaces, public places or in housing due to disability.
  • Severe breathing problems are considered a disability.  Lanlords/owners are required to provide reasonable accommodations to persons with severe breathing disabilities, including possibly making the buidling/complex totally smoke-free. (6) 

• To qualify, the reaction to the SHS must substantially limit one or more major life activities.  To be “substantial,” the impairment must be severe and long-term. (7)

• To file a FHA claim contact the U.S. Housing and Urban Development at         http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/complaint-process or call 1-800-669-9777

• The landlord should take actions to prevent secondhand smoke from causing harm to tenants and affecting the enjoyment of the property.  Landlords that do not take action may be liable to legal action should the tenant show they have been harmed.

Listed below are some ways non-smoking tenants can bring legal action regarding secondhand smoke          against the owner, manager or other tenants under common law. (8)

- Breach of the covenant of quiet enjoyment             - Negligence  - Breach of warranty of habitability                    - Nuisance  - Intentional infliction of emotional distress  - Battery  - Constructive eviction                                 - Trespass (9)

 

It is legal for owners and managers to ban smoking on and in properties.

• Smoking is not a legal right. Smoke free policies do not infringe on the legal rights of individuals.(10)

Federal or state law does not restrict owners, landlords or managers from adopting “no smoking” policies.  In fact, the US Department of Housing and Urban Development strongly encourages owners and managers to adopt smoke free policies for their properties.[11] Smoke free policies can be written into leases or made part of the “house rules”.

• Owners/Landlords may not deny a person the right to live on the property because they smoke, but owners can regulate that the person not smoke on the property. (or smokes only in designated areas.)

Steps Towards Smoke Free Policies for Tenants

Document each time smoke enters your home, from where the smoke enters and how it affects you and your family. Talk with the smoker about the issue of secondhand smoke coming into your unit.  Be friendly and provide some solutions such as smoking outside and away from the building.  Often smokers do not know that their smoke may be causing a problem.

• Talk with your neighbors to find out if they are having a similar problem.  Ask them to help you to address the issue and ask for smoke free policies for the building/complex.

Write a letter to your landlord (and/or complex management company) about the problem of secondhand smoke entering your unit. Include the effects of it on you and your family and schedule an appointment to talk about solutions to the issue.   (see tips on writing the letter) Give your landlord (or complex management) information on the health effects of secondhand smoke and solutions to the problem.  Let them know that it is legal to make the property smoke free and give them information on how to go about making the property smoke free. (click here for information for landlords and smoke free policies) Document all of your discussions and communications with your landlord or management company so that there is proof that you have asked for the secondhand smoke issue to be addressed.

• Should the secondhand smoke problem not get resolved, you may refer to some of the legal options available to you in the “Tenants have rights protecting them from secondhand smoke” section of this page.

 Adapted from GASP of Colorado, www.mysmokefreehousing.org 

PDF version of "Steps Towards Smoke Free Policies for Tenants"

This information is for educational purposes only and is not to be construed as a legal opinion or as a substitute for obtaining legal advice from an attorney.