What is a no smoking clause?
A no smoking clause is a provision in a lease agreement that prohibits the tenant or anyone accessing the premises with the tenant’s consent from smoking tobacco or marijuana anywhere inside the building , including hallways and stairwells. The provision can also limit smoking to a designated area outside of the building.
These clauses have been incorporated into lease agreements in Alberta for many years but their use has recently increased. It is not clear whether this increase is due to more tenants being reluctant to rent units in buildings where smoking is permitted or if it is a result of landlords being more aware of their rights and the rights of their tenants in the face of uncertain legal precedent.
The purpose of a no smoking clause is to protect a property owner’s investment by reducing the amount of damage to the unit during the lease term and/or to reduce any health risks associated with smoking.
Advantages of a no smoking clause
The advantages of a no smoking clause in a lease agreement are many. To begin with, it is designed to protect the health of all tenants and their guests. This is perhaps the most important benefit. In addition to protecting the immediate health of the tenants and their guests, it will also aid in preventing future health issues that can be caused by second-hand smoke. Scientific data suggests that second-hand smoke can increase the risk for many different long-term health issues such as lung and heart disease, stroke, cancer and more.
Secondly, it can assist in preventing the need to evacuate the premises due to a potential fire from either a cigarette or a cigar. Fires can be a major problem for apartment buildings in particular. To prevent a potentially deadly fire, all it would take is an additional precautionary layer of protection, and a no smoking clause is just what contract lawyers recommend.
If it comes down to needing to go to court over a smoking-related situation, a no smoking clause in the lease agreement will also make it more likely the court will side with the landlord. If this is something that could benefit you, speak with a contract lawyer.
The law and no smoking clauses
As with any contract clause, a no smoking clause is unenforceable if it violates laws that are applicable to the particular relationship between the parties. While there is no blanket prohibition on no smoking clauses, a court must consider the specific substance and character of the relationship between the landlord and tenant, as well as statutes regulating the relationship, to determine if the clause is permissible.
Increasingly, state and local legislatures have adopted laws that prohibit smoking in multi-unit residential housing. Depending on the jurisdiction, owner-occupied residential properties, like single family homes and owner-occupied condos, apartments, and townhouses might be permitted to outlaw smoking, but the scope of this prohibition varies greatly from jurisdiction to jurisdiction. We will focus only on multifamily properties, such as traditional apartment buildings and condo associations where the units are rented or leased to tenants. In most cases, where smoking is prohibited in common areas or the units themselves, a no smoking clause in the lease agreement would be enforceable. Where smoking is prohibited in the entire property, such as prohibited in the common areas of the property and in the units themselves, no smoking clauses may still be enforceable but more likely than not, the court will interpret the prohibition to be applicable to common areas of the property where the tenant’s right of enjoyment extends, as well as the units themselves.
Federal anti-discrimination laws, such as the Fair Housing Act (also known as the Civil Rights Act), prohibit landlords from treating tenants differently based on race or national origin. Tenants who believe that they are being discriminated against based on race or national origin, can bring a suit against a landlord for violating the Fair Housing Act, depending on the circumstances, which may or may not be victorious. Some courts have been unwilling to extend application of the Fair Housing Act to no smoking clauses in lease agreements. Courts that have adhered to this position have noted that allowing residents to smoke in the units themselves and the common areas where the residents have a right of enjoyment, interferes with their ability to smoke in their own properties over which they have exclusive control and, therefore, only discriminates against those who smoke.
Liability of strict enforcement of no smoking clauses in a lease agreement can arise in the form of a retaliatory eviction claim. These claims are not often successful, and because the "retaliation" is usually only brought after a cause of action has been initiated, such as a notice to quit has been filed, and the complaint has a good faith basis to proceed, liability is unlikely to arise.
Local and state laws may also make no smoking clauses in lease agreements unenforceable, and as the trend toward prohibiting smoking in public places increases, the law will likely shift as well.
How to draft a no smoking clause
In addition to eliminating ambiguity as to what is prohibited or restricted, the no smoking clause should also set forth penalties or consequences for violations of the prohibition. While the circumstances for such a breach may vary, the written clause should preferably recite that the defaulting party will be responsible for all costs, damages, liability, loss, or expense (including attorneys’ fees and costs), incurred by the non-defaulting party as a result of the breach. Typical language might read, the defaulting party agrees to pay all costs, damages, liability, loss, or expense (including attorneys’ fees and costs) incurred by the non-defaulting party "arising out of the defaulting party’s breach of the no smoking clause." Alternatively, the clause can also directly set forth the consequences of a violation. For example , if the tenant violates the no smoking clause and the landlord incurs $xxx in cleanup costs, the lease can recite the tenant’s obligation to reimburse the landlord.
Willful violations of the no smoking clause by the tenant, its employees, agents, visitors, guests, or other third parties will generally entitle the landlord to an immediate monetary penalty and/or the ability to evict the tenant. Tenant Responsibilities The tenant can also be required to inform tenants, employee guests, or other approved third parties of any no smoking policy and its restrictions. The tenant can also be required to take reasonable responsibility—in addition to its reimbursable costs—for the enforcement of the building’s no smoking policy, including dissemination of brochures and signage.
Enforcement and disputes
As the old saying goes, "an ounce of prevention is worth a pound of cure" and with no smoking clauses, this age old adage rings true. Should a landlord include a no smoking clause in a lease, that clause shall be enforced in any and all ways that a landlord normally enforces terms of a lease whether it be through a phone call, letter or eviction filing. Depending on the tenant’s behavior, the enforcement of a no smoking clause may require different responses from the landlord or property management. For instance, a tenant may engage in one of two behaviors after being presented with the no smoking clause, with our fictitious tenant "Bob" performing both "bad behaviors". The following represents how each situation should be handled. (1) Bob receives a copy of his lease renewing the same terms as his previous lease, and the new lease contains a no smoking clause. Bob reads the lease in full and agrees to sign the lease as presented with full knowledge that he will not be permitted to smoke inside the apartment. This scenario should be treated as a normal renewal process and the property management or landlord should respond to any and all of Bob’s complaints about the smoking policy with professionalism and as any other tenancy issue. Should Bob refuse to sign the lease and keep bothering the landlord with his complaints, simply remain calm and professional. Continue to send Bob reminders that the lease is only in effect with his signature and without it, he does not have a tenancy and he must therefore vacate the property by the lease end date as a tenant-at-sufferance. (2) Bob moves in under the lease that prohibits smoking in the building. Alternative health issues arise for Bob and he can no longer follow the rules. In this situation, the landlord should work with the tenant and attempt to find an agreeable solution. Similar to the process of transparency in implementing the no smoking clause discussed above, the landlord should keep accurate notes of his communications with Bob. This is useful for possible future dispute resolution, should Bob later attempt to dispute his lease violation. Ultimately, Bob should have been reminded that he was responsible for upholding the terms of the lease and is therefore subject to forfeiture of his security deposit or eviction filings, depending on the seriousness of the problem. Whether via letter, phone call or eviction filing, Bob should be reminded of any and all noise ordinances or house rules that he agreed to at the time of moving in and the consequences of such behavior should be reiterated. If the landlord is unresponsive to Bob’s complaint, Bob could argue that he was only trying to enforce the terms of a lease that his landlord made him sign so he could agree to the terms or leave the apartment without losing his security deposit. Two years have gone by since the landlord rejected Bob’s complaints regarding the smoking and there is no recourse for Bob to complain (legally). No Smoking Policies are becoming more popular with landlords and tenants across the country especially in regards to protecting the rights of the non-smoking tenants in multi-family housing. Tenants’ rights extend to use of the apartment unit without fear of secondhand smoke drifting into their home from surrounding tenants. With this protection comes an obligation to uphold contractual obligations as allowed by Ohio law.
The impact of the no smoking clause on the tenancy
A new study reveals how the No Smoking Clause affects tenancy, tenant selection and tenant turnover. It also addresses potential impacts on marketability and tenant satisfaction.
Whereas it is undisputed that a no smoking policy will negatively impact approximately 25% of the prospective tenant pool, the clear majority of tenants, 75%, report that they would rent from a property where smoking is not permitted. Interestingly, the majority of tenants who have never occupied a non-smoking unit, or who do not currently reside in a no smoking unit, either "Strongly Agree" or "Agree" that they would dwell in a unit that prohibits smoking. Regarding Tenant Selection, more than 86% of respondents have rated the importance of a non smoking unit as "High" or "Very High." The inclination to rent an apartment within a no smoking property is so substantial that renters will even spend over 10% over the average market price to reside in a smoke-free environment. According to the survey, 25% of residents, who reside in a no smoking community, would prefer for their neighbors to be non-smokers . Interestingly, more than half – 51%, of all renters (relative of non-smoking and smoking communities alike) have indicated that they would like their neighbors to not smoke. Even if the results are only statistically significant to those who reside in environments where smoking is prohibited, the insight is clear: prohibition of smoking increases the overall satisfaction of most renters. Members of the survey population evaluate various elements of tenant and leasing operations. For example, 78% claim that a non smoking policy will contribute to a better condition of the existing apartments because the policy promotes a "cleaner look". 76% believe that the existence of a non smoking environment creates an impression of higher value to tenants. 76% estimate that by prohibiting smoking in apartment units, properties will experience lower turnover for existing residents. 76% estimate that the presence of a non smoking property will result in less turnover among staff. This number becomes more relevant when taking into consideration that agency and contractors are often smokers; therefore, there will be less disruption in turnover. 73% maintain the opinion that a no smoking community will suggest a more professional property management.