Smoke-free Housing Resources for Rental Property Owners and Managers

Smoke-free policies are smart.

The Springfield-Greene County Health Department recently surveyed more than 400 renters on their opinions about smoke-free housing policies. Nearly 3 in 4 say they would prefer to live in a smoke-free building. Yet, only 40% of multi-family buildings in Springfield currently have smoke-free policies. 

Of those property management companies that have gone smoke-free, none have seen a negative impact on vacancy rates. In fact, the Springfield Housing Authority reports their apartments are more in demand since a full smoking ban went into effect.

Smoke-free policies are safe.

Tenants of buildings that allow smoking are at higher risk of being displaced, injured or killed in a fire. Careless smoking was the 2nd leading cause of residential fires in Springfield in 2017, accounting for 12% of all residential fires (26 total calls), according to the Springfield Fire Department. Of these fires, 85% occurred in rental properties.

Additionally, smoking is the leading cause of fire-related fatalities and injuries in Springfield. From 2005 through 2015, 38% of fires that resulted in a death were caused by careless smoking.

Smoke-free polices are legal.

Smoke-free rental policies have been established in Springfield, MO and other communities with success. Despite initial fears that establishing smoke-free policies may not be constitutional, there is no legal basis for this argument. People who smoke are not a protected class and do not have special legal status under the Equal Protection Clause of the Constitution.[1] Smoking is not a specially protected liberty right under the Due Process Clause of the Constitution. The fundamental right to privacy does not apply to smoking. This is because smoke-free policies are about where people smoke, not whether they smoke. Smoke-free policies are not discriminatory because they do not prohibit anyone from renting a unit.

Since smoking is not a specially protected constitutional right, the Constitution does not bar the passage of local, state or federal smoke-free laws or restrictions on smoking imposed by the owner or manager of the property. They merely set rules for activities permitted on the property. 

In fact, smoke-free policies can help avoid lawsuits because residents, staff members, and maintenance workers can file lawsuits over secondhand smoke. Claims may be based on legal precedents for nuisance, warranty of habitability, or the covenant of quiet enjoyment. Landlords, management companies, and smokers may all be found liable in such cases. Tenants with preexisting conditions, such as asthma or other respiratory illnesses, can file claims under civil rights laws, such as the Fair Housing Act.

[1] There is No Constitutional Right to Smoke: 2008, Tobacco Control Legal Consortium

Smoke-free policies are enforceable.

The smoking policy must be included in the lease agreement signed by the tenant. It is recommended that the lease be clear that the policy pertain to residents and guests. It should include a clause making residents financially responsible for returning the unit back to the original condition if they violate the smoke-free policy.[1]

Landlords with smoke-free policies indicate they are mostly self-enforcing because residents frequently complain about another resident that may be violating the policy. Neutral third parties such as painting or carpet cleaning companies may also be able to assess whether or not smoking has occurred. Violations of smoke-free policies should be dealt with in a similar fashion as other lease violations.

Many landlords and owners recommend progressive discipline if a tenant violates the policy, beginning with a verbal warning, followed by a two written warnings before a termination notice is issued. During all phases of disciplines, it's recommend that the landlord provide smoking cessation information.

[1] Smoke-free Oregon

Smoke-free policies will save you money.

There is no cost associated with adopting a smoke-free policies. In fact, smoke-free policies can result in significant savings. Apartment turnover costs in smoking units are 2-7 times higher than smoke-free units[1]. One of Springfield's largest property management companies reports the average direct costs associated with repairing and re-renting a smoking unit is $2,500 compared to around $500 for a non-smoking unit.

Careless smoking fires caused $237,280 damage to rental properties in Springfield in 2017. This was an average loss per property of $10,790, according to the Springfield Fire Department. The average cost to repair a unit following a fire is $6,000 to $8,000 for the smoke damage alone. This does not include property damage caused by the flames themselves.

[1] Smoke-free Housing Initiative, American Lung Association