In PA is it permitted to make some apartment unites non-smoking?
Question
In the state of PA, is it permitted to make some apartment units non-smoking?
Answer
Obviously, I’m not familiar with every law at every level of government in the country, so I can’t state that a particular rental property location is not subject to some weird local ordinance related to prohibition of non-smoking rules. However, I’d probably bet a lot of money against there being one.
Nationwide the trend has for many years been to limit smoking. Many states have passed laws and many local governments have passed even more restrictive ordinances against smoking in public places. Some jurisdictions even prohibit smoking in bars. In a recent report the CDC estimated that roughly 47.8 per cent of residents are now covered by comprehensive state or local indoor smoking bans.
There has in recent years been increasing action against smoking by owners and managers of properties. Management companies that manage tens of thousands of apartments and condos have gone smoke-free in the past five years, including those managed by the owners and those managed by management companies. Some municipalities are passing ordinances related to smoking prohibitions, not only in public places, but also in multi-unit housing.
Most basically, there is no federal law that prevents landlords and property managers from regulating smoking on the premises, whether inside individual units or outside in common and private use areas. I doubt that there is any state law regarding the issue. This is because (1) there is no constitutional right to smoke and (2) smoking is not protected by Fair Housing laws – e.g., HUD does not prohibit non-smoking policies in affordable housing. In fact, in 2009 HUD released a memo that encourages public housing authorities (PHAs) to implement non-smoking policies. A number of PHAs around the country have adopted non-smoking policies.
It is my opinion that landlords should specifically prohibit smoking in their units and within common areas rather than discriminate against smokers per se because it is the act of smoking in the unit that is important to the owner and the secondhand smoke in common areas that is important to other tenants rather than the fact that a tenant is a smoker. Most, perhaps all experts feel that owners have the right to protect their properties against damages from smoking and to protect other occupants from secondhand smoke.
However, now the problem becomes one of detecting violators without running afoul of privacy rights. The solution is to both prohibit smoking inside of units; for multi-family properties, on associated patios and balconies and within any common areas; and to make tenants responsible for damages resulting from failing to adhere to the prohibition.
This requires that applicants first be made aware that the unit is a non-smoking one in order to avoid wasted time and money in processing applications for those who might be unwilling to sign a lease that includes non-smoking provisions. Upfront notice can be accomplished in advertising, in an information sheet attached to the application form, and/or within the application form itself (the more places, the better).
The lease agreement should, of course, contain very specific clauses related to the non-smoking issue. In addition to a clear statement of the prohibition, acknowledged by the tenants upon signing the agreement, the lease should also
set out in some detail a list of damages resulting from smoking for which a violator will be responsible. The list would include items such as burns or stains on any component of the unit, odors, smoke residue on any surface, and
potential other liabilities such as damages resulting from smoking related fires. It should also include wording to the effect that these are examples of damages and not the only possible damages for which they will be liable.
The lease agreement should clearly make the tenant responsible for the cost of repairing, cleaning, painting, or replacing any items so damaged. Of course, the tenant must be initially provided with a unit that has no evidence of previous
smoking-related damage or such previous damage must be noted in the move-in checklist.
A landlord cannot introduce a non-smoking policy within units during the term of an existing lease, but can include it as a clause in any extension or renewal of an existing lease agreement. It would be best to give all tenants in a multi-unit
property advance notice that such will be the case. I won’t guarantee that prohibiting smoking within common areas or in other places (balconies & patios) where other tenants could be exposed to secondhand smoke would withstand a challenge by a smoker whose lease agreement does not prohibit it, but I wouldn’t be surprised if such a prohibition would be allowed because it protects the health of other tenants.
For multi-unit properties, prohibiting smoking inside units and in common area hallways and within some distance of residents’ patios, balconies, doors, etc, can actually reduce the risk of problems. Because tobacco smoke is often considered a nuisance in the same way that loud noise would be considered a nuisance, if tenants complain about drifting tobacco smoke landlords must take action to protect them.
In fact, landlords and property managers who fail to accommodate non-smoking tenants who complain about secondhand smoke may be exposing themselves to lawsuits. If a resident or prospective resident has a disability or chronic illness which is made worse by exposure to tobacco smoke, Fair Housing Laws will require a ”reasonable accommodation.”