Should You Allow Smoking in Your Rental?

This guide outlines the policy around smoking, including marijuana, in rental units and the options landlords have in protecting their investment.

Policy & Regulation

Smokers are not protected under the Fair Housing Act or any federal law, which gives landlords the right to refuse to rent to smokers. Even though cigarettes and tobacco are legal at both the federal and state level, property owners still have the right to disallow smoking on their property.

Please note that specific regulations around smoking can vary from state-to-state and even city to city. It is important that you check the ordinances and laws near you for the most accurate information. While policies can vary, the majority of building codes across the US strictly outline a no smoking policy as the harmful side effects of secondhand smoke can be a source of complaint for surrounding tenants.

Pros and Cons of Smokers

Ultimately, it is up to the property’s management to decide the guidelines on renting to smokers. Here are some pros and cons:

Pros:

• More applicants: Renting to smokers increases the pool of potential tenants.

Cons:

• Fires and damage: Smoking can start fires or create cigarette burns, especially in carpets.
• Residue: The smoke residue can leave a yellow tinge on the walls and ceilings.
• Health concerns: Secondhand smoke becomes a health concern for neighboring tenants, often leading to complaints.
• Odor: Smoking leaves an odor behind that can be costly to eliminate. (Note: Marijuana smoke does not tend to leave the strong odor that is noted with cigarette smoke.)
• Thirdhand smoke: When the toxins and carcinogens of cigarettes are absorbed into the surrounding environments (i.e. walls, curtains & carpets), these lingering residues can have health implications for future tenants.
• Turnover risk: Future tenants may decide not to rent if smoking was permitted to prior tenants.

Check the Lease

Once you have made a decision, clearly outline your decision on smoking in the lease. Since policy regarding smoking is not universal, it is essential that the lease includes your personal policy. State and local laws will support a landlord that opts to create a smoke-free environment within their property as long as it is articulated in the lease. If the lease does not mention any smoking policy then technically the landlord cannot enforce a no-smoking policy. It is up to your discretion if you want to completely disallow smoking on the property or designate certain areas that it is permitted. Again, if you do choose to do so, specify it in the lease.

Here is a sample lease amendment from the Americans’ for Nonsmokers for guidance on what language to include in your lease.

Who is Responsible for Damages?

While rental properties can go through everyday wear and tear, damages caused by smoking are not considered part of normal wear and tear. Landlords have the right to charge tenants for damages such as yellow walls and burnt carpets. As a landlord, you must provide the tenant with an itemized list of the damages before taking the funds out of their security deposit. The landlord must also have evidence of the damages, which is sometimes a bit more difficult when it relates to toxins absorbed into surrounding areas.

Are Laws Different for Marijuana?

The short answer is no. Just as with cigarettes and tobacco, landlords still have the right to ban marijuana in any form on their property. While some states have opted to legalize marijuana, it is still illegal on the federal level. Since marijuana is illegal federally, outlawing it within your unit is a way to protect yourself as an owner even in states where it is legal.

The same procedures hold true in reference to medical marijuana. While a landlord may opt to allow medicinal marijuana use on their property, they are not required to do so by law. That being said, laws around this topic are ever changing as more and more states legalize marijuana. Once again, it is crucial to state your preferences in the lease. Marijuana can be present in several forms, so be specific in your language as to which forms you wish to outlaw

In states where marijuana is illegal, a landlord can opt to include a section specifically related to prohibiting marijuana; however, your lease should already have anti-drug or criminal activity policies that deny it.

Protect Rentals through Insurance?

While coverage can change based on the state or company, all owners should carry homeowner's or landlord insurance to protect their asset. Landlord insurance is essentially a combination of homeowner’s insurance and small business insurance that protects owners from financial losses caused by incidents such as fires and storms.

In a case of a fire, it comes down to who is at fault. If fault lies with the owner, having an insurance policy acts as a nice safety net. However, if fault lies with the tenant, say from a cigarette, it is upon the tenant to cover the losses. Many landlords opt to include a stipulation that tenants must carry renters insurance for situations like these.

Smoke alarms are another way property owners can protect themselves. State guidelines are strict when it comes to the number and location of smoke alarms within a property. It is the responsibility of the owner to ensure the installation and initial working condition of the smoke detectors. In most areas (check your State and local laws), tenants are responsible for making sure the smoke detectors stay in good, working condition. This includes changing the batteries and immediately notifying the landlord if the device malfunctions.

Concerns about smoking should be minimal if the landlord or manager sets the right expectations through:

1. The Lease: outlining the policies for smoking on the premise
2. The Walkthrough: during the move in or walk through, providing a friendly reminder on the smoking policy
3. Landlord and Renter's Insurance: having a way to cover any losses by requiring the tenant to carry their own insurance