Q: I work in a major university’s housing referral office where we work with local landlords who want to offer housing options to our students. Recently a landlord came in to the rental office and wanted to list a house for rent with the stipulation of no smoking in the house or that only nonsmokers would be allowed in his rental house. Is this legal? What are the laws on smoking in a rented house, condo or apartment?
A: There is a growing trend in our country of landlords seeking to restrict or limit smoking in their rental units. There are many economic benefits to the landlord, plus individuals in the rental market are insisting that they not have to live next to individuals who smoke. Longtime readers of this column can likely recall that a common question concerns the rights of nonsmokers who have smokers in adjacent rental units and the smoke seeps into their rental unit through cracks and crevices or the air conditioning systems or they have to live with their windows constantly closed when the neighbor is smoking on their patio or balcony.
To address these concerns and capitalize on the increased demand for nonsmoking rental units, many landlords are now offering smoke-free rentals. There are some tenant-landlord legal opinions that still are concerned that declaring rental units to be smoke-free is illegal or discriminatory. My personal, non-attorney position is that I believe it is legal to restrict rental property to nonsmokers; however, in the majority of the country there are no specific laws in this area. Smokers are not "a protected class" such as age, race, creed, color, gender, etc., and therefore I would contend that an owner could refuse to rent to a smoker as long as he or she has a reasonable business purpose in establishing such a policy. Of course, the business purpose will most likely be that smoking in the rental causes damage and additional wear and tear on the unit; clean-up costs for carpets, window coverings, repainting, etc., are higher; and insurance premiums might even be higher. You get the idea.
In the past, I have debated attorneys who state that while my answer is probably correct because the issue has not clearly been resolved by the legislature or courts, the owner could run the risk of an expensive legal challenge, which is not worth the risk.
I noticed an important distinction in the way you presented your question (or the way the owner asked you to list the unit). That is, the owner wanted "no smoking in the house" or a nonsmoker! Therefore, the concern raised by some attorneys is minimized even further since the owner is not refusing to rent to smokers, just that no one is authorized to smoke in the unit. This is very similar to other day-to-day experiences we have with hotels, airlines, etc., that also have rules addressing the behavior and not the person. Smokers can fly or stay in nonsmoking hotel rooms, but they just have to refrain from smoking while doing so. Personally, I would have no trouble taking this rental listing as long as the rental-home owner knows that smokers can apply, but that they must agree to not smoke in the rental home.
Q: I teach a property management course for new apartment managers and read your column with great interest. Recently, our class discussions centered on the issue of a tenant insisting that his carpet be replaced. I recall reading a long time ago in your column that a carpet that was separating from the backing was a health hazard and the owner was financially responsible for replacing the carpet. Can you explain how a damaged carpet is a health hazard? I thought carpet was cosmetic and wasn’t a necessity like heat or water. Would a city health department actually respond to such a complaint and send the owner a violation notice?
A: Yes, I believe that the carpet in this case was a health hazard. While a landlord isn’t required to provide carpeting, if it is provided then it must be in reasonable and safe condition just like any other component of the rental unit. A carpet that is so worn that it is delaminating or separating from the backing could very easily present a trip-and-fall hazard, as the surface of the carpet may move while the backing stays in place. Therefore, it was my opinion that the landlord in this case must either replace the carpeting or remove it.
Also remember with carpets that they could be worn to the point that they are so thin that the nails in the tack strip are exposed, or the carpet could have loose threads or tears that constitute a dangerous condition. Carpets can also be repositories for chemicals or mold or mildew or pet waste and should be cleaned regularly, although the tenant would be responsible for the cleaning of the carpet during the tenancy unless the cause of the damage was due to the landlord’s negligence.
Tenants should always notify the landlord in writing about any condition in their apartment that they believe is a health and safety concern, and they should allow the landlord access to the rental unit to inspect the item.
This column on issues confronting tenants and landlords is written by property manager Robert Griswold, author of "Property Management for Dummies" and co-author of "Real Estate Investing for Dummies."
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