More rental property owners are prohibiting smoking in their buildings. The reasons to do so are many: avoiding the smell and stains that permeate your property, lowering the risk of fire, and protecting the health of children and non-smoking tenants. Plus, a number of municipalities are passing no-smoking laws for multi-family or public housing buildings.
However, smoking is not illegal. While you may have decided to prohibit smoking inside your rental units, can you deny the lease applications of smokers? And what can you do if you find out after the fact that someone was smoking in your smoke-free property?
First of all, smokers are not a protected class. The Fair Housing Act does prohibit housing discrimination against people based on religion, sex, disability, race, color, national origin, and family status. But it doesn’t deny landlords the right to choose tenants based on their smoking status.
To prevent smokers from taking advantage of lease loopholes, such as smoking outside their units, you might consider strengthening your lease language to prohibit smoking anywhere on the property. Since you are the owner and it is private property, you have the right to prohibit smoking wherever you’d like.
Being a hands-on landlord can help you avoid the problem of hidden smokers. When walking through your property, you may notice cigarette butts, or smell smoke. Asking tenants if they’ve noticed any smoking will indicate that you care about their health and enforcing the terms of your lease. If you do find out someone has broken the lease by smoking, you could have grounds for eviction (check with a landlord/tenant attorney for advice).
While frequent inspections can flush out smokers, many landlords don’t see the inside of their units until a tenant has moved out. If you discover signs of smoking, such as odor, cigarette burns or a layer of tar on walls and ceilings, you are likely entitled to withhold clean up costs from the tenant’s security deposit. Track all expenses (cleaners, primer, paint, new flooring) and keep receipts. Of course, it’s best to conduct a move-out inspection with the tenant so he or she can acknowledge all damages.