No Smoking Policy is Not the Same as a Lease Term

By Robert Griswold

Question: I recently rented an apartment through a rental locator service and moved into an upstairs rental unit, which is right above the owner. I am a light smoker. Recently, I notified the owner of a maintenance problem and when she came to fix it she noticed a cigarette butt in the ashtray and was very upset. She said that she had a strict no-smoking policy and if I didn’t comply, I would have to move. Neither the rental agent nor the owner (who had actually first shown me the unit) had ever told me about the no-smoking policy, and there is no reference to smoking whatsoever in the lease. While I have been considerate and voluntarily restrict my cigarettes to two per day next to an open window, I am concerned that I may be evicted. Can she evict me or must she wait until my 12-month lease expires?

Property manager Griswold replies:

The owner cannot evict you during the 12-month lease unless the no smoking policy is one of the terms of the lease. Since the lease does not contain such a clause, the landlord must wait to the expiration of your lease. Of course, the landlord is not legally obligated to renew your lease. Therefore, while it appears that the law is on your side, you may want to consider speaking with your landlord soon and discuss any alternative financial arrangements that could be offered if you would agree to vacate early. Since it is very unlikely that you will be able to stay in the long run (unless you quit smoking), you may be able to get your landlord to return your full deposit and even provide funds to cover some of the costs of your move. This would be financially better for you and avoid the continued hassle of living where you know that you are not welcome.

Tenants' attorney Kellman replies:

When is a lease provision not a lease provision? When it is a "policy." Many landlords attempt to enforce "policies" onto tenants when there is no mention of that particular rule in the lease. This then appears to be an improper "afterthought" type of restriction on the tenant.

If the landlord wants to prohibit smoking in the units, I believe it must be clearly spelled out in the lease or house rules made a part of the lease. The fact there is a secret policy of your landlord regarding no smoking is interesting, but I do not think a judge would enforce it as if it were a lease provision. The landlord is not obligated, however, to renew the lease after the 12 months are up.

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