The city of Belmont, Calif., imposed a smoking ban at all rental properties in September. The city of Oakland, Calif., is also considering a no-smoking policy. And a handful of multifamily owners and operators have already made the switch to smoke-free at their properties to protect their investments. It may be time for affordable apartment owners to educate themselves and consider whether a smoke-free policy is the right decision for them.

Guardian Management, a Portland, Ore.-based real estate firm, recently implemented a no-smoking policy for its entire portfolio of approximately 8,000 affordable and market-rate housing units across the West. The no-smoking policy applied to all new residents beginning Sept. 1, and existing residents starting in January 2008.

The benefits

In addition to keeping residents happy, going smoke-free can save apartment owners and operators money. A no-smoking policy can cut down on maintenance and cleaning costs outside units and around the property (particularly if owners extend the ban to balconies, patios, and common areas). A smoking ban reduces the risk of fires ( just Google the word, “apartments,” and see how often what is generated are new reports about apartment fires). Plus, nicotine smells and stains can be impossible to remove. Smoke can infiltrate units through vents, plumbing fixtures, and minute cracks in ceilings, walls, and floors.

“Appliances have had to be replaced in apartments because the smell was so bad,” said Jacque Petterson, a multifamily owner and director of Smoke-Free Housing Consultants in Helotes, Texas. “If you want to really properly clean a unit that’s been smoked in, you can spend up to $12,000.”

Petterson said she’s had landlords approach her and say that they are being sued by tenants because they allow people to smoke in units. Such cases don’t often make the news because they are usually settled out of court.

Is the ban discrimination?

Under common law, a multifamily owner has the right to place certain restrictions on tenants, including smoking, as long as the landlord does not violate the Constitution or other laws, according to a 2004 report from the Tobacco Control Legal Consortium.

“When I talk to landlords, they say, ‘I can’t make my building a non-smoking building. That would be discrimination,’” said Esther Schiller, executive director of advocacy group Smokefree Air For Everyone, or S.A.F.E. “They don’t realize that people who smoke are not protected by state and federal antidiscrimination laws. And they don’t have to ask potential tenants if they smoke. They can say that the unit they are advertising for rent is going to be a non-smoking unit. They can designate areas outside for people to smoke or not. That’s up to them.”

HUD’s view

In 2003, the chief counsel of a Department of Housing and Urban Development (HUD) field office in Detroit issued an opinion saying that nothing in federal law, including the Fair Housing Act, prohibits affordable housing owners from making some or all units smoke-free. The opinion also stated that no HUD policy prevents apartment owners from prohibiting smoking in units or in common areas of HUD housing. If owners seek to make their properties smoke-free, they must exempt residents who smoke and currently live in the complex. Owners of HUD housing who decide to make nosmoking a condition of the lease should obtain approval from HUD.

Not Just Blowing Smoke

  • There is no judicially recognized “right to smoke” in a multi-unit dwelling, whether the dwelling is privately owned or is public housing.
  • Residents of multi-unit dwellings have a variety of common-law remedies for stopping secondhand smoke penetration.
  • Residents of multi-unit dwellings may seek enforcement of local safety and health codes, ordinances, or regulations to stop secondhand smoke infiltration.
  • A resident who can show secondhand smoke exposure limits a major life activity can use the federal Fair Housing Act to end the secondhand smoke infiltration.

Source: Susan Schoenmarklin, Tobacco Control Legal Consortium, Infiltration of Secondhand Smoke into Condominiums, Apartments and Other Multi-Unit Dwellings (2004).