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Commonly Asked Legal Questions

ADA & FHA | Minnesota Laws | Legal Liability | Discrimination | Public Housing

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It is completely legal for a property manager to adopt a smoke-free policy for their rental apartment buildings (including individual units). We have identified some of the most commonly asked legal questions below.

If you have legal questions about your specific situation, you can contact Live Smoke Free or seek legal assistance. We have created a directory of legal resources that may be able to help you. More information regarding legal rights can be found at the Public Health Law Center's website.

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Americans with Disabilities Act (ADA) and Fair Housing Act (FHA)
"Can residents exposed to secondhand smoke get relief from the ADA or FHA?"

Maybe. Residents with health issues may be considered disabled under the Americans with Disabilities Act, the Federal Fair Housing Act, or the Minnesota Human Rights Act. If their condition is made worse by being exposed to their neighbors’ secondhand smoke, they can pursue a legal action requiring a reasonable accommodation in their housing to prevent exposure. Possible accommodations could include implementing or enforcing a smoke-free policy, repairs to reduce or eliminate secondhand smoke infiltration, or adding separate ventilation or heating systems.

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Minnesota Laws
"What does current state law prohibit or permit in regards to smoking in rental apartment buildings?"

  • Common Areas of Rental Buildings
    • The Minnesota Clean Indoor Air Act prohibits smoking in common areas of rental apartment buildings with 3 or more rented living units.
    • The indoor common areas, including hallways, laundry rooms, underground garages, rental offices, building entrances, exercise rooms, indoor swimming pool areas, and party rooms must be smoke free.
    • Exterior smoking shelters need to be constructed in compliance with the state law definitions to avoid being considered “indoor common areas.” The provision of smoking shelters is not required under any federal, state or local law.
    • For more information, read "Freedom to Breathe in Rental Apartment Buildings" from the Minnesota Department of Health.

  • Individual Units of Rental Buildings
    • No Minnesota state statute prohibits smoking in individual rental units.
    • No Minnesota state law or local ordinance prohibits a property manager from making an entire apartment property smoke free; landlords can choose to make individual units smoke free.
    • According to the Minnesota Department of Health, the proprietor or property manager has the option of establishing and enforcing a policy for the property that is more restrictive than state law. If a more restrictive policy is adopted it should be stated in the lease agreement.

For more information about complying with the Minnesota Clean Indoor Air Act, contact the Minnesota Department of Health Indoor Air Unit.

"Do I need to disclose to potential renters whether my building allows smoking?"

The city of Duluth, Minnesota, has adopted an ordinance requiring rental property owners to disclose the smoking policy for their property, whether it is smoking-permitted or smoking-prohibited. Currently, this is the only municipality in the state with this requirement

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Legal Liability
"What are my legal liabilities if I don't go smoke free?"

It is possible that a resident could bring legal actions against a property owner for any of the following:

  • Nuisance
  • Breach of the Warranty of Habitability
  • Breach of the Covenant of Quiet Enjoyment
  • Trespass

A successful outcome for a resident could result in rent abatement or judicial termination of leases. In addition to the legal actions listed above, there is a growing likelihood of suits based on the property manager's knowledge of a dangerous condition on the property, like secondhand smoke transfer, and not acting to warn prospective renters or reduce exposure for current residents.

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Discrimination
"Is it discriminatory to designate an entire building or apartment campus as smoke-free?"

No. Smoking is not a protected activity or right. An individual’s status as a smoker is not a protected category of persons nor is addiction to nicotine a recognized disability under federal, state, or local law. 

Recommendation: Property owners or managers are encouraged to implement the smoke-free policy based on the activity of smoking and not on an individual’s status as a smoker. Write the policy so that a person who smokes can rent a unit or continue to live in the building, but he or she must refrain from smoking in the building or other areas that are included in the policy.

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Subsidized Housing (HUD and USDA)

"Do HUD and the USDA permit smoke-free policies in properties they fund?"

According to the two primary funders of federally subsidized housing, the U.S. Department of Housing and Urban Development (HUD) and the U.S. Department of Agriculture (USDA), it is legal for owners or managers of subsidized housing to prohibit or otherwise restrict smoking.  In fact, both agencies strongly recommend that smoke-free policies be put in place.   

In 2007, Live Smoke Free and the Public Health Law Center received a letter from the Minneapolis HUD office confirming that HUD did not have any regulations prohibiting the adoption of smoke-free policies for HUD supported housing. In 2009, HUD issued a notice to all public housing authorities, “strongly encouraging" them too adopt smoke-free policies for some, or all, of their buildings. This was followed by a notice in 2010 directed to other federally subsidized properties, such as Section 8 and senior housing properties, encouraging owners to consider implement smoke-free policies.  Both of these notices were re-issued in 2012.

Live Smoke Free and the Public Health Law Center obtained a letter in 2008 from the St. Paul, Minnesota office of the USDA’s Rural Development (RD) programs stating that RD did not have any restrictions on the adoption of smoke-free policies for the properties they support. The RD program issued a notice in 2011 that followed the example set by HUD.  In an “unnumbered letter” (similar to a HUD notice), RD encouraged owners of the properties that RD supports to adopt smoke-free policies.

The process for adopting, implementing and enforcing smoke-free policies varies for the different forms of federally subsidized housing. Some programs require that the policy be adopted by way of a change to the house rules; others permit property owners to make a change to the lease. For more information on the differing requirements, the Public Health Law Center's chart explains the requirements for private and subsidized buildings.

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Legal Materials Dedicated to Smoke-Free Housing

The above documents were produced by the Tobacco Control Legal Consortium.

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