Second-Hand Cigarette and Marijuana Smoke In an Apartment

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Tenants are usually free to break a lease if there is regular secondhand cigarette or cigar smoke in the apartment. Tenants may also be able to 1) recover medical costs from the building owner in some circumstances if the smoke caused health issues or 2) get a court order forcing the smoker to stop smoking indoors. Landlords can typically evict a tenant for smoking in the apartment. Where marijuana is illegal in the state or city, the tenant is likely in violation of a provision found in most leases that prohibits illegal activity.

Breaking the Lease

There are many court cases where tenants have won against landlords for not resolving secondhand tobacco smoke issues. In most cases, the landlord must first be notified of the issue and be given a reasonable time to fix it. The most common legal theories are that it’s a violation of a tenant’s rights if they do not have 1) “quiet enjoyment” of their property or 2) a safe property (“warrant of habitability”). Under both legal theories, the tenant may break their lease and may even be able to seek reimbursement for some medical expenses if there are documented health problems. A list of cases dealing with secondhand smoke can be found here: http://www.smokefreehousingnc.com/docs/for-residents/secondhand-smoke-cases-involving-tenants.pdf. Similar concepts apply to marijuana smoke. For example, it may disturb the tenant’s “quiet enjoyment” of the property. It also may make the apartment unsafe (“uninhabitable”), especially if there are children and animals present. Because the law is unclear for marijuana, it’s recommended that tenants seek advice from a local attorney before attempting to claim the landlord has violated the lease for failing to fix a second-hand marijuana smoker.

Recovering Medical Costs

Tenants facing health issues caused by second-hand smoke may be able to recover the medical costs in some cases. Usually, the tenant will be required to show they have notified the landlord and the landlord ignored their complaint. Legal theories include negligence, nuisance, and battery, as outlined in some example cases in this link. The best legal theory and likelihood of winning varies heavily by jurisdiction, so it’s highly recommended that tenants obtain a lawyer if they’ve incurred medical costs from second-hand smoke. http://www.smokefreehousingnc.com/docs/for-residents/secondhand-smoke-cases-involving-tenants.pdf.

Evicting Tenants for Smoking in the Apartment

The law is still evolving in this area, but typically, a landlord can evict a tenant for repeatedly smoking tobacco in their apartment because the tenant is causing a nuisance to other tenants. Furthermore, many states and local jurisdictions have enacted laws that prohibit smoking law indoors and some leases prohibit smoking indoors. Landlords have the right to prohibit indoor marijuana smoking. A typical lease prohibits illegal activity in the apartment. However, such a generic lease clause may be insufficient in states where marijuana legalized. Marijuana is still considered illegal by federal law and it’s unclear where local courts will interpret “illegal” for leases in their states when state and federal conflict. Similarly, it’s unclear how lease terms that prohibit smoking indoors will be interpreted. For these reasons, it’s important to look at local laws and consult a lawyer.

Marijuana Prescriptions

Where medical marijuana is legalized, landlords are at least required to provide a reasonable accommodation for them to smoke if they don’t want them to smoke indoors. However, it’s unclear whether tenants have any protection under the Fair Housing Act, and whether landlords can evict a tenant for smoking prescription marijuana. The Fair Housing Act requires “reasonable accommodations” to people with disabilities. A disability includes any physical or mental impairment that substantially limits one or more major life activities, including most people who have a prescription for marijuana. It’s unlikely that allowing a tenant to smoke indoors is the only “reasonable accommodation” for the medical condition – a simple alternative is providing an outdoor smoking area or closing the vents between that apartment and other apartments. If the Fair Housing Act applies, then it’s illegal for a landlord to evict that tenant if they could have simply let them smoke outside. However, there is an exception under the FHA for illegal activities. Even as states legalize marijuana, it is still a controlled substance under federal law, and therefore it’s unclear whether FHA protections apply.

Breaking the Lease


There are many court cases where tenants have won against landlords for not resolving secondhand tobacco smoke issues. In most cases, the landlord must first be notified of the issue and be given a reasonable time to fix it. The most common legal theories are that it’s a violation of a tenant’s rights if they do not have 1) “quiet enjoyment” of their property or 2) a safe property (“warrant of habitability”). Under both legal theories, the tenant may break their lease and may even be able to seek reimbursement for some medical expenses if there are documented health problems. A list of cases dealing with secondhand smoke can be found here: http://www.smokefreehousingnc.com/docs/for-residents/secondhand-smoke-cases-involving-tenants.pdf.

Similar concepts apply to marijuana smoke. For example, it may disturb the tenant’s “quiet enjoyment” of the property. It also may make the apartment unsafe (“uninhabitable”), especially if there are children and animals present. Because the law is unclear for marijuana, it’s recommended that tenants seek advice from a local attorney before attempting to claim the landlord has violated the lease for failing to fix a second-hand marijuana smoker.

Recovering Medical Costs


Tenants facing health issues caused by second-hand smoke may be able to recover the medical costs in some cases. Usually, the tenant will be required to show they have notified the landlord and the landlord ignored their complaint. Legal theories include negligence, nuisance, and battery, as outlined in some example cases in this link. The best legal theory and likelihood of winning varies heavily by jurisdiction, so it’s highly recommended that tenants obtain a lawyer if they’ve incurred medical costs from second-hand smoke. http://www.smokefreehousingnc.com/docs/for-residents/secondhand-smoke-cases-involving-tenants.pdf.

Evicting Tenants for Smoking in the Apartment


The law is still evolving in this area, but typically, a landlord can evict a tenant for repeatedly smoking tobacco in their apartment because the tenant is causing a nuisance to other tenants. Furthermore, many states and local jurisdictions have enacted laws that prohibit smoking law indoors and some leases prohibit smoking indoors.

Landlords have the right to prohibit indoor marijuana smoking. A typical lease prohibits illegal activity in the apartment. However, such a generic lease clause may be insufficient in states where marijuana legalized. Marijuana is still considered illegal by federal law and it’s unclear where local courts will interpret “illegal” for leases in their states when state and federal conflict. Similarly, it’s unclear how lease terms that prohibit smoking indoors will be interpreted. For these reasons, it’s important to look at local laws and consult a lawyer.

Marijuana Prescriptions


Where medical marijuana is legalized, landlords are at least required to provide a reasonable accommodation for them to smoke if they don’t want them to smoke indoors. However, it’s unclear whether tenants have any protection under the Fair Housing Act, and whether landlords can evict a tenant for smoking prescription marijuana.

The Fair Housing Act requires “reasonable accommodations” to people with disabilities. A disability includes any physical or mental impairment that substantially limits one or more major life activities, including most people who have a prescription for marijuana. It’s unlikely that allowing a tenant to smoke indoors is the only “reasonable accommodation” for the medical condition – a simple alternative is providing an outdoor smoking area or closing the vents between that apartment and other apartments.

If the Fair Housing Act applies, then it’s illegal for a landlord to evict that tenant if they could have simply let them smoke outside. However, there is an exception under the FHA for illegal activities. Even as states legalize marijuana, it is still a controlled substance under federal law, and therefore it’s unclear whether FHA protections apply.

Last Update : July 22, 2018 UTC

Comments discussing Second-Hand Smoke

11 months ago
0
votes

I smoke and I feel violated because I can't smoke and now I am angry and it's my right to smoke! Are there any places that are section 8 and accept smokers to smoke on their properties BUT outside the your other!
Renter in Antioch, CA, USA
Second-Hand Smoke
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4 months ago
0
votes

What is the law for secondhand smoke in Kentucky if you live in a low-income apartment that subsidized for old people
Renter in Russellville, KY, USA
Second-Hand Smoke
almost 2 years ago
1
votes

My neighrbo keeps smoking weed and the smoke is coming into my baby's room they have no job just smoke all day good to know, will report them
Renter in Los Angeles, CA, USA
Second-Hand Smoke