The city of Belmont, Calif., imposed a smoking ban at all rental properties in September. Oakland, Calif., is also considering a nosmoking 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 apartment owners to educate themselves and consider if a smoke-free policy is the right decision for them.
Guardian Management, a Portland, Ore.-based real estate firm, implemented a no-smoking policy for its entire portfolio of approximately 8,000 market- rate and affordable housing units across the West.
The no-smoking policy applied to all new residents beginning Sept. 1, and will apply to existing residents starting in January 2008. In September 2006, seniors housing developer First Centrum, based in Sterling, Va., adopted a smoke-free policy for all new residents at 46 of its communities in six states.
First Centrum polled its residents after several complained of secondhand smoke. After discovering only 8 percent of residents smoked, the firm decided it made sense to implement the policy.
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 of 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 nonsmoking building. That would be discrimination,’” said Esther Schiller, executive director of advocate group Smokefree Air For Everyone. “They don’t realize that people who smoke are not protected by state and federal anti-discrimination 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.”
‘Warranty of habitability’
Landlords “are responsible for ensuring that rental properties are fit for human occupancy,” notes the 2004 report. “The landlord in effect makes a ‘warranty of habitability’ to the tenant for the life of the lease. The plaintiff in a secondhand smoke case would argue that the presence of secondhand smoke renders his or her residence unfit for habitation and constitutes a breach of the lease.”
In a 1998 case in Massachusetts, 50- 58 Gainsborough St. Realty Trust v. Haile, the Boston Housing Court found that secondhand smoke breached both the warranty of habitability and “the covenant of quiet enjoyment.” The tenant withheld rent for three months, and a judge ruled that secondhand smoke coming into the tenant’s apartment made the unit “unfit for smokers and non-smokers alike.”