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HUD Proposes Banning Smoking in Public Housing – Should You Follow Suit?

Published by ezLandlordForms on

The Department of Housing and Urban Development has proposed banning smoking in all buildings under its control, another nail in the coffin for dwindling US smokers.

While many HUD properties have been voluntarily smoke-free for years (HUD strongly encouraged them to adopt no-smoking policies beginning in 2009), the proposal would ban lit tobacco products in all rental units, indoor communal areas and administrative office buildings.  Smoking would also be prohibited in outdoor areas within 25 feet of HUD-owned buildings.

HUD’s proposal, which is currently in the public comment process, will require public housing agencies to implement smoke-free policies within 18 months of a final rule.  It will impact residents in over 700,000 units, although the department says that over 500 agencies have already gone smoke-free in at least one of their buildings.

Not affected by the proposed rule are units in mixed-finance buildings (because the public housing agency would not necessarily be the primary owner) and privately owned units with tenants who receive assistance from a Section 8 program, such as the Section 8 Rental Certificate Program.

The benefits of HUD’s proposal are obvious:  improved air quality, improved residents’ health, reduced fire risk and lower maintenance costs.  Apparently residents agree.  According to the proposal, researchers for the Centers for Disease Control found that the majority of residents in multi-unit housing support smoke-free policies.

That’s hardly surprising, given that only about 18 percent of U.S. adults smoke, according to the CDC.  And even if smoking were limited to private spaces, nonsmokers can still be exposed to second-hand smoke from adjacent units.  Surveys of multi-unit housing residents reveal that anywhere from 24 to 60 percent of them say smoke from other units finds its way into their homes.

The fire risk from smoking is also very real.  According to the U.S. Fire Administration, smoking is the leading cause of fire deaths in multi-unit properties.  Coupled with the added maintenance costs caused by smokers (an estimated $1,250-$2,955 per unit), going totally smoke-free makes sense.

It’s still unclear whether products such as hookahs or e-cigarettes, which use water to vaporize tobacco, will be included in the ban.  Public comment is currently being sought on hookahs, and although a ban on e-cigarettes isn’t currently part of the proposal, HUD has indicated that it could appear in the final version.

The Impact on Landlords

Although the smoke-free mandate only applies to HUD public housing and not privately-owned properties that might, for example, fall under the Section 8 umbrella, a policy this sweeping will certainly send ripples through the rental pond.  If nothing else, it gives landlords looking to institute their own smoke-free property policies a template to follow.

If you currently allow smoking in your units, consider the factors that led HUD to create the ban:  Smoking endangers the health of your residents – smokers and nonsmokers alike – and it’s expensive.  Really expensive.  

Smoking TenantSmoking Isn’t a Right

If you fear pushback from any of your resident smokers, don’t forget that smoking is not a constitutional right.  Nor is a smoke-free policy discriminatory in any way.  In fact, allowing smoking could leave landlords vulnerable to lawsuits from nonsmoking residents exposed to second-hand smoke in a multi-unit building.  If, for example, a resident suffers from asthma, he or she could argue that allowing smoking is a violation of fair housing laws.  If you have employees who have to work in common areas where smoking is permitted, you could also be in violation of state laws that forbid smoking in the workplace.  And don’t forget that the vast majority of renters prefer smoke-free housing.

One aspect of the proposal is especially noteworthy for landlords: Public housing agencies are not required to create smoking areas and in fact may expand the smoke-free zones beyond the suggested guidelines.  That means you shouldn’t feel obligated to allow smoking anywhere on your property, either.  It may actually be easier to forbid it altogether than to carve out an area where it’s permitted.

Going Smoke-Free

So what do you do if you have smokers in one or more of your properties and you want to go smoke-free, too?  First, have a system in place to deal with infractions.  Because HUD has endorsed smoke-free policies in the past, it has procedures for dealing with violators.  Take a page from their playbook and do the same.

Start with a lease agreement that includes a nonsmoking clause (HUD has indicated that its smoke-free policy will be included in tenants’ lease agreements).  Or, if you currently have a tenant who is a smoker, you can have him or her sign a smoke-free property addendum.  However, it may be easiest to allow a smoker’s current lease to expire rather than to try to enforce a new addendum.  When the original lease term is up, you can include a nonsmoking clause in the new lease contract, making sure you indicate that visitors and guests must also comply with the policy.  If the tenant doesn’t agree to the new terms, then he or she can move on and you can find a tenant who doesn’t smoke.

When you’re trying to find those tenants, make sure you prominently mention in any advertising and property listings that your units are smoke-free.  You’ll automatically avoid potential tenants who smoke and may actually appeal to a larger pool of renters who prefer smoke-free housing.

If practical, post signs on your property that indicate that smoking is not allowed.  If you do decide to allow smoking areas, make sure they’re also well-marked and that you provide safe receptacles for cigarette butts, such as sand or water buckets.

Tracking Down Offenders

The nose may be the best tool when it comes to finding violators.  If you smell smoke, or if other residents tell you they smell it, follow up at the unit in question.  Periodic inspections of the property and any routine maintenance you may perform are good opportunities to check for evidence of smoking, but you’ll need to give the proper notice to enter as required by your state first.

If your tenant is in violation of your nonsmoking policy, make sure you carefully document your findings.  A smoking violation notice is a professional way to let a tenant know he isn’t upholding the terms of the lease and informs him of the consequences.  Deal with these types of lease violations as you would with any other.

Help is Out There

Many states offer toolkits for landlords looking to make their properties smoke-free.  A quick online search will yield plenty of information and resources.  However, you as the landlord can also serve as a resource for your tenants.  Recognize that many smokers would prefer to quit.  Offering them guidance and support as well as suggesting programs that can help them kick the habit is a healthy move for all involved.

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