What Is a No Smoking Clause?
No smoking clauses are used by landlords and property managers to restrict whether tenants may smoke cigarettes or other tobacco products within rental properties. A no smoking clause may be included in the lease/rental agreement itself, or it may be a separate addendum to the agreement which is signed by all parties. No smoking clauses may apply to the entire property or just a certain area of the property. For example, smoking restrictions may apply in common areas, such as hallways, elevators, pools, other recreational facilities or anywhere else on the property . In some cases, landlords may even enforce a no smoking policy amongst tenants who live within multi-unit apartment buildings. The no smoking clause is generally intended to protect other tenants at a property as well as the property itself. Tenants are usually required to sign an acknowledgment of the no smoking policy in order to be rent a property, whether it be in the form of an addendum or otherwise. By prohibiting tenants and their guests from smoking on the property, landlords hope to decrease the risk of a fire, as well as lessen the amount of smoke damage that could impact other tenants or cause the property to deteriorate.
Advantages of a No Smoking Clause
It is not only landlords that benefit from a no smoking clause in their tenancy agreements. Tenants too should seek to include a no smoking provision for the following reasons:
Health concerns: As noted above, exposure to second-hand smoke can cause a number of serious diseases in both the smoker and the non-smoker, its victims particularly vulnerable to lung and heart disease. These health concerns may be avoided by simply prohibiting smoking from the outset, prior to any harms having been caused.
Safety concerns: If a tenant is smoking in the common area of an apartment building, the risk exists that the smouldering butt might go unnoticed until it begins to burn a hole through the carpet or set fire to the sofa. It is important to note that although a landlord is not a guarantor of safety from risks involved in a fire that happens outside the scope of the landlord’s duty of care, the landlord still has an interest in ensuring that the obligation to keep the premises safe from fire hazards is not breached due to the negligence of a tenant. For example, in Best v Parkland Village Homes, the court found that the landlord was liable to pay the costs to extinguish a fire caused by a tenants’ guest.
Property Maintenance: Tenants are required to keep their rental unit in a state of cleanliness. This may often be a point of contention between landlords and tenants. It is very difficult to require that a property is kept in a state of cleanliness when the property is being polluted by cigarette smoke at all times. If a tenant is going to be using nicotine patches to help them quit, then they will have incentive to keep the property free of the harmful carcinogen.
Legal Implications
Legal considerations may also come into play with no smoking provisions in rental agreements. There may be both federal and state statutes or regulations that address whether a landlord has a right to prohibit smoking in specifically defined areas or areas within the building. At the federal level, the U.S. Department of Housing and Urban Development (HUD) recently issued a smoke-free housing policy in December 2016. Based on findings in the HUD study, the HUD Secretary determined smoking presents significant hazards to indoor air quality. The HUD rule applies to public housing (but would not otherwise apply to landlords other than public housing).
At the state level, various states regulate smoking in different ways. For example, California prohibits smoking in any rented living unit in public housing, and also crossing over into common areas. California is currently considering legislation which would expand the existing prohibition to all multifamily housing in California. Of note, these public housing regulations do not necessarily apply to private rental property in California (e.g., they wouldn’t apply to a privately owned apartment complex). There have also been cases in California where tenants have sued their landlord over secondhand smoke, based on causes of action for private nuisance or constructive eviction.
But even without the passage of new laws, it is likely that if a tenant is being disruptive by smoking cigarettes or chewing tobacco, and the lease states a violation has occurred, the landlord could send the tenant a notice to pay rent, or quit, with a termination date, and in those jurisdictions where a tenant can cure a lease violation, an eviction notice or created simply upon the lapse of time specified in the lease. Other jurisdictions and states vary significantly as to the protection accorded to tenants against smoking prohibition.
How to Write a No Smoking Clause
No Smoking provisions in a rental agreement can take various forms, but in all circumstances, landlords should consider the following points of information and questions to be taken into consideration when constructing the clause: Generally the landlord desires a No Smoking clause to follow the resident throughout the term of the agreement and as long as permitted by law at the property. While local laws may vary from one municipality to another, many No Smoking provisions are only enforceable in areas where smoking is prohibited inside buildings. In that regard, it is advisable for the landlord to be aware of what the local regulations are and whether the proposed No Smoking provisions are sufficiently clear and who is really being prohibited from smoking on the property (e.g., only the resident tenants or all occupants including underage children).
Difficulties in Enforcing
The enforcement of a "No Smoking" clause presents numerous challenges. Tenants often deny they have violated the terms of their lease agreement and/or argue the breach is deminimus. Even when the breach is admitted, executing a suitable remedy can be tricky.
Landlords frequently face allegations their buildings aren’t smoke free or the breach relates to another tenant’s smoking.
For example, in Urban Land Institute Montreal III v Homes by Aviage (Greenfield Park) Inc., 2018 QCCQ 7214, the lessee terminated the lease of a unit that was in breach of the no smoking provision. The lessee claimed it would have continued the lease if the building had been smoke free.
Similarly, in Danchuk v 2292370 Ontario Ltd (c.o.b. Knights Inn), [2018] O.J. No. 3034 , the tenant claimed other tenants were smoking in the "non-smoking" areas of the motel.
If it is determined there has been a breach, landlords have several potential remedies.
First, the lease may permit the landlord to assess liquidated damages for breach of the no smoking clause. Liquidated damages are different than and usually, less than what the landlord would be able to collect by way of common law damages claims.
If the lease doesn’t contain a liquidated damages provision a landlord may be able to claim general damages for the breach. However, it can be difficult to evidence a pecuniary loss and not every lease will contain a clause that permits the landlord to collect general damages.
Further, there may be no costs associated with the breach or those costs may fall below the threshold for a significant pecuniary loss.
Tenants’ Take
Tenant’s perspective: Objection and negotiation over no smoking clauses
As with nearly every potential point of friction in a residential tenancy, when it comes to no smoking clauses, the solution is communication and compromise. While you should absolutely communicate any objectionable clause to your landlord (who can have the clause removed), you should also keep in mind that you are living in someone else’s home as a tenant, and you are not usually paying them to make those kinds of compromises.
You will almost certainly be able to successfully negotiate such a clause if you know old school negotiation tactics. Good negotiators will avoid using tired methods like position (sticking to a position and refusing to back down until an accommodation is reached) or power (believing that only someone in a position of power is entitled to ask for and to receive) in favour of listening to the interests of the other party.
For example: how would you feel if you were compelled to live with the smell of another tenant’s cigarette smoke? What about the odor of their marijuana consumption? Wouldn’t you want to know that your landlord has done what is within their power to ensure that your air remains clean? Not having a smoking clause in your agreement increases the risk of conflict between you and other tenants. If that happens, where do you think the landlord’s loyalties will fall?
If you do not want to back down from your objection, you can potentially trade a compromise away with your landlord. If you have a car, you could forego your parking right in exchange for the removal of the no smoking clause. If you use public transportation, offer to pay an extra month of rent in lieu. Or explain that you are willing to forego the right to some other amenity in the building if the landlord removes the no smoking clause.
Other Options Beyond No Smoking Clauses
If the landlord is concerned about the issues associated with smoking but does not wish to include a no smoking clause, there are a number of other options such as:
- Smoke-free unit/guest room designations. If any units/guest rooms are to be designated smoke-free, it should be noted in a provision in the lease or guest registration form that smoking is not permitted in the unit/guest room. The tenant/guest will be asked to sign and attach such a provision to the lease or guest registration form.
- Designated smoking areas. If the landlord wishes to permit smoking in certain units or guest rooms, the landlord can designate certain areas of the property for smoking. For example , a unit/guest room may be reserved for a smoking tenant/guest upon request. Some condominiums and HOAs provide a designated area for owners/residents to smoke and the landlord/owner can specify that they may be given preference in occupying such units.
- Designated smoking times. A landlord may wish to permit smoking in certain units/guest rooms but only at certain times of day or week (e.g. weekends). A tenant/guest may be required to request to reserve the unit/guest room for the period in which it may be made available for smoking.
Depending on the option chosen, a landlord may wish to charge a surcharge for the privilege of smoking in a unit/room or the privilege of occupying a smoking unit/guest room.
