While many apartment buildings are “no smoking” properties, it’s hard to know exactly how many. In 2017, the National Apartment Association reported more than half of rental properties had smoke free policies. This figure is probably higher now, as a result of greater awareness of health risks, including the risk of secondhand smoke. In addition to health concerns, smoking disputes can also lead to complaints by residents.
Smoking involves issues both apartment owners and tenants care about, like litter and fires. Multifamily building owners can save money on property insurance if they don’t have to mitigate smoke odors; they can save on maintenance costs by not having to repair damaged walls, fabrics, carpets and ventilation systems frequently.
Recognizing the benefits of “no smoking” policies, apartment owners are increasingly adopting smoking bans, including bans on electronic cigarettes (vaping), herbal vaporizers, hookah and heated tobacco product use (HTPs). Some of these are considered less harmful than traditional cigarette and cigar smoking but they all reduce indoor air quality and cause problems with residue build-up. As a result, buildings that ban smoking often include smoking alternatives in their bans.
When banning smoking, some building owners, attempting to be fair to existing tenants, “grandfather in” smokers who moved in before the ban. When a tenant is grandfathered, she is exempt from the ban, either entirely or -- more frequently -- with specified conditions, such as outdoor smoking only or smoking only inside her apartment.
If an incremental or step-by-step approach is selected, a landlord can take steps designed to gradually reduce smoking, such as (1) establishing smoking areas (outdoor patios and balconies), and/or (2) first banning smoking of substances other than cigarettes and later banning cigarettes and cigars.
Whether the chosen approach is an absolute ban or a gradual phase-in, smoking restrictions can be controversial and they are notoriously hard to monitor and enforce. It can be difficult to find the source of smoke when air ducts move odors and smoke from place to place. How can the manager know whose ashes or cigarette butts are thrown in the bushes or tossed from balconies? If smoke escapes an apartment, without witnesses it is challenging to prove who smoked. A tenant may legitimately but incorrectly mistake kitchen smoke or candle smoke for smoking. A smoker in a no-smoking building may not be a resident – a guest, vendor or delivery person may have smoked in or near the apartment or had a strong smoking odor on his body or clothes. Management and building staff aren’t always on duty to observe smoking violations, and when they are, they may have more important things to do.
Smoking bans have the potential to pit tenants against one another. It is possible that one tenant benefits from smoking while another is injured by it, as in the situation where one smokes prescribed marijuana for health reasons (to minimize side effects of chemotherapy) even though this increases hazards for a neighbor with asthma who uses an oxygen tank at home. Fire prevention regulators say there is no safe way to smoke in a home where someone uses oxygen, yet many oxygen users smoke. The National Institutes of Health reported on home oxygen fires in Maine, Massachusetts, New Hampshire and Oklahoma over a period from 2000–2007, with 38 deaths attributable to fires caused by smoking.
A simple way to introduce prospective tenants to a property-wide smoking ban is to plainly and prominently describe the building as “no smoking” in advertising, on-site signs and on the rental application form. The landlord can include a prominent “no smoking” clause in leases, charging a supplemental security deposit if the applicant acknowledges smoking, and applying clean-up fees if smoking is detected. Rental cars and hotels already do this when their cars and rooms smell like smoke after a guest returns the vehicle or leaves the room.
To sum up, while smoking in apartments is known to be risky, enforcing no-smoking policies is challenging. For apartment owners, despite the challenges, adopting no-smoking policies likely benefits most tenants and helps owners avoid potential liability for health-related harm to nonsmokers. These are strong incentives for apartment smoking bans.
My Key Take-Aways as a Legal and Real Estate Expert
My takeaways for those looking for smoke-free apartments won’t guarantee you find a totally smoke-free apartment but you can let a prospective landlord know you want a smoke-free living environment. You should:
(1) Understand that even in “no smoking” buildings, management may not always be able to isolate and identify violations or prove who broke the rules.
(2) In principle, smoking bans benefit human health but there are circumstances where some individuals need or benefit from smoking, including addiction and medical treatment.
(3) If you move into a no-smoking building and have concerns about possible violations, ask the landlord to put a clause in your lease allowing you to move to another apartment or cancel your lease without penalty if you demonstrate a smoking violation, regardless of who caused it.
(4) Document dates and times you detect smoking and report these to the landlord or management; if there is no resolution, be prepared to move if necessary to protect your health and safety. It is primarily your responsibility to safeguard your well-being at home. Landlords try to provide safe, sanitary, habitable and dispute-free apartment homes, but people living together in proximity doesn’t always guarantee their efforts succeed.
