Q: Is smoke-free housing legal?
A: Making your property smoke-free is completely legal and within your rights as a property owner and does not violate any state or federal fair housing laws. Just as landlords can set rules for their properties, such as no pets or quiet hours, they can also make their properties smoke-free.
Q: Don't people have a right to smoke in their homes? Isn't it a violation of privacy?
A: There is no legally protected right to smoke in multi-unit residences recognized by courts in the state of Massachusetts or anywhere else in the U.S.
Q: Can smokers request reasonable accommodations for smoke-free policies (so they can continue smoking in their units), citing smoking as a disability?
A: Addiction to nicotine is not a qualifying disability under state or federal law. Therefore, there is no legal requirement to allow someone to smoke in his or her apartment. Smoking is also not recognized as a medical treatment for any health condition.
DEVELOPING A SMOKE-FREE POLICY
Q: How do I make my property smoke-free?
You can make your property smoke-free by having tenants sign a lease addendum to the standard lease document. Landlords of market-rate housing in Massachusetts are also required by law to provide at least 30 days' notice about a lease change to tenants before the end of the current lease (60 days for Section 8). For more information, please see How to Go Smoke-free or download A Landlord's Guide to Smoke-Free Housing.
Q: Can smokers live in smoke-free properties?
A: A smoke-free rule DOES NOT mean no smokers. Smokers are welcome to live, visit, or work in smoke-free residential properties, provided they abide by the rules.
Q: What about e-cigarettes, marijuana, hookahs, and other types of smoking products? Do smoke-free policies apply here?
A: Anything that burns and is inhaled should be included in the smoke-free policy including marijuana, hookahs and other types of products that are smoked. Some smoke-free policies include e-cigarettes and e-pipes. Please see more about e-cigarettes and marijuana below.
Research about the health effects of e-cigarettes is ongoing. Many landlords are prohibiting the use of e-cigarettes in private units, as well as in common areas, to reduce the potential for confusion and make enforcement of the no smoking policy easier. At this time, e-cigarettes are also not recognized as a medical device to help smokers quit.
Landlords may also prohibit the smoking of marijuana, including medical marijuana, under their smoke-free rule, based on Massachusetts law (105 CMR 725.650). It should be noted that tenants utilizing medical marijuana have options other than smoking it.
Q: Do you recommend creating a designated smoking area on the property outside the building?
A: There are multiple factors to consider, including costs, potential liability issues, the size of the grounds of the property, and the make-up of the tenant population.
Q: What is the standard perimeter around a building that should be included in the smoke-free rules?
A: The reason to include a perimeter around the building in a smoke-free policy is to prevent smoke from drifting into the building. Some properties have a 15 foot perimeter, others 25 and some make their whole property smoke-free.
IMPLEMENTING A SMOKE-FREE POLICY
Q: I'm concerned that introducing a smoke-free policy is going to be met with a great deal of resistance. What should I do?
It is recommended to survey and/or meet with the residents to gauge support for the policy and to identify concerns or challenges and to problem solve. Additionally, landlords and/or property managers should provide advance notice, including an implementation date and make the policy clear and specific.
Q: There are some elderly and disabled tenants who have difficulty going outside to smoke. What should I do?
If you have vacant units on the first floor or closer to an exit or elevator, you may wish to accommodate disabled and/or elderly tenants to assist residents in complying with the rule. Problem solving with the resident and any health care or social supports they have may also be helpful.
ENFORCING A SMOKE-FREE POLICY
Q: I am worried about how to enforce the smoke-free policy. How do you enforce it, especially when the smoker can deny that s/he was smoking??
Smoke-free housing policies are enforced just like any other rule written into a lease (e.g. no pets, quiet hours):
Management may also wish to meet with tenants to remind them of the lease and/or provide a written warning. The warning should include the consequences outlined in the policy, which should also be enforced. Consequences can include fines and eviction proceedings if the situation is ongoing. For more information, please see How to Go Smoke-free or download A Landlord's Guide to Smoke-Free Housing.
- Respond quickly when a complaint is made.
- Re-post signage or reminders of the policy
- Document all complaints in writing