Legal Research Regarding Smoke-Free Buildings and Transfer of Environmental Tobacco Smoke Between Un
As discussed in detail in this report, the law regarding smoke-free apartment buildings and the movement of environmental tobacco smoke (ETS) in apartment buildings is still developing. However, a summary of the law, relevant trends, and the consensus recommendation of the author of this report and the legal advisory committee for this project (which included attorneys who routinely represent property owners and managers, tenants, and the public housing sector) is as follows:
- A landlord can include use restrictions, such as a no-use-of-tobacco restriction, in its lease.
- Minnesota has an administrative finding, with support from the Attorney General’s office, backing this right of a landlord to include a no-use-of-tobacco clause in its lease. There is similar law in other states.
- The U.S. Department of Housing and Urban Development (HUD) has also supported this right of a landlord to include a no-use-of-tobacco clause in its lease, including leases of federally subsidized housing.
- In some cases involving serious ETS problems, landlords have faced suits where tenants have sought to terminate their lease or have sought to hold the landlord responsible for failing to prevent another tenant’s smoke from entering the sensitive tenant’s unit. HUD has resolved at lease one suit by a tenant complaining of ETS by starting to create no-smoking buildings in the complex. Although the law in this area is far from settled, the risk of suit, and potential liability for landlords, merits property owners taking a closer look at offering smoke-free options.
- Carefully drafted leases, such as the one proposed in Part 2, infra, can limit the landlord’s exposure to such ETS claims while also benefiting the landlord in other ways (reducing smoke-related damage to building materials, possibly reducing fire insurance premiums, attracting the 47% of tenants who are especially interested in no-smoking complexes, etc.).
- Civil rights suits by smokers who have applied for jobs and been rejected because of their smoking have been dismissed. Although these cases are few in number, the few holdings indicate that being a smoker/smoking is not a disability within the meaning of various civil rights laws.
- The chief risk for a landlord offering a smoke-free alternative is the risk that smoke-sensitive tenants will seek to hold the property owner or manager to a higher standard of care and, in turn, argue that the landlord has promised a higher air quality for the building. The author of this report and the legal advisory committee felt this risk could be adequately addressed by language in a carefully drafted lease to warn applicants and residents that the landlord is not a guarantor of a smoke-free environment, to inform tenants that their assistance in enforcing the smoke-free provisions is needed, and to limit the landlord’s responsibilities to taking reasonable steps to enforce the smoke-free terms of the lease. An important part of our recommendations in the Model Smoke-Free Lease Addendum, and in proposed legislation discussed in this report, is to give tenants a right of action to enforce smoke-free restrictions against fellow tenants or their guests who violate the rules or lease covenants in a smoke-free rental community. The author of this report and the legal advisory committee strongly recommend that the Minnesota Legislature adopt the proposed amendment to the Minnesota landlord-tenant statute that would create a tenant action against another tenant for smoking in these circumstances. The remedy proposed would allow a tenant injured by another tenant’s violation of the no-smoking rules to seek relief in the same division of the district courts as hears eviction actions. The committee felt this proposed statute and remedy would be welcomed by landlords, who may be reluctant to bring an eviction action or terminate the lease in response to a contested smoking complaint, and by tenants, since it would give a remedy to a complaining tenant who alleges he or she has been injured by ETS.
In short, landlords who do nothing (ignore the issue of smoking) face a growing likelihood of suits by tenants suffering from ETS. Whether or not these suits or claims will be successful remains an unsettled legal question in the State of Minnesota. Tenants have been successful in some cases in other states in recovering rent abatement or in having their lease judicially terminated. It appears that landlords who choose to offer no-smoking options, or to limit smoking in part of their communities, may reduce their risks of such suits without exposing themselves to civil rights claims by smokers.
Full report (PDF)
Legal Research Regarding Smoke-Free Buildings and Transfer of Environmental Tobacco Smoke Between Units in Smoking-Permitted Buildings