Landlords' Legal Rights

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

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

If you are ready to learn about how you can adopt a smoke-free policy for your building, read the Steps to go Smoke Free. You can also read "How Landlords can Prohibit Smoking in Rental Housing," produced by the Technical Assistance Legal Center in California (opens as a pdf in new window). Please note that some of the information in the Technical Assistance Legal Center document is specific to California state law, but many of the strategies can be used in any state.

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 (opens as a pdf in new window). More information regarding legal rights can be found at the Tobacco Control Legal Consortium's web site at www.wmitchell.edu/tobaccolaw.

Americans with Disabilities Act (ADA) and Fair Housing Act (FHA)

Tenants with handicaps and disabilities made worse by being exposed to their neighbors’ secondhand smoke may seek a legal action under the Americans with Disabilities Act, the Federal Fair Housing Act, or the Minnesota Human Rights Act requiring a reasonable accommodation in their housing. Possible accommodations could include developing or enforcing a smoke-free policy, repairs to reduce or eliminate secondhand smoke infiltration, or adding separate ventilation or heating systems.

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 (MCIAA) was enacted in 1975 and was recently amended in 2007 (the 2007 amendment is known as Freedom to Breathe).
  • The Minnesota Clean Indoor Air Act prohibits smoking in common areas of rental apartment buildings with 3 or more rented living units.
  • While the original MCIAA allowed for a smoking area depending upon the size of the common area, the 2007 amendment completely eliminates smoking in indoor common areas.
  • Currently, all 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.
  • The Minnesota Department of Health has created a fact sheet (opens as a pdf in new window) about rental apartment buildings and the MCIAA with regards to the Freedom to Breathe amendments.


• Individual Units of Rental Buildings
  • There is no Minnesota state statute that prohibits smoking in individual rental units.
  • There is also no Minnesota state law that prohibits a landlord from making an entire apartment building smoke free. Landlords can choose to make individual units smoke free.
  • The Minnesota Department of Health's fact sheet on prohibiting smoking in common areas of rental buildings states "The MCIAA restricts smoking in common areas of rental apartment buildings; however, the proprietor or property manager has the option of establishing and enforcing a more restrictive policy for the property, including individual units. 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.

Legal Liability

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

It is possible that a tenant could bring legal actions against a landlord for a breach of the warranty of habitability or the covenant of quiet enjoyment, trespass, or nuisance which could result in rent abatement or judicial termination of leases. While legal cases are rare, there is a growing likelihood of suits based on the landlord knowing the dangers of secondhand smoke transfer and not acting to reduce exposure.

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 or recognized disability.

A smart decision is to implement a policy based on the activity of smoking and not an individual’s status as a smoker. Write the policy so that a person who smokes can continue to live in the building, but they must refrain from smoking in the building or other areas that are included in the policy.

Public Housing (HUD and Section 8)

According to the U.S. Department of Housing and Urban Development (HUD), owners of public housing have the right to ban or otherwise restrict smoking. However, if owners seek to make their buildings smoke free, HUD recommends that buildings grandfather in (exempt from the policy) those smoking residents currently residing at the complex for a reasonable period, such as until the lease renewal. Some forms of public housing that use HUD leases should make a “House Rule” change to convert buildings to 100% smoke-free environments, rather than contacting HUD to make a lease change.⁽¹⁾

On August 1, 2007, the Minneapolis, Field Office of HUD responded to an inquiry by an attorney from the Tobacco Law Center and the William Mitchell College of Law. The letter from the Chief Counsel at the Minneapolis office explains that there is nothing to restrict Minnesota landlords from creating a smoke-free policy and includes letters from the Minneapolis office to two Housing and Redevelopment Authorities in Minnesota on creating a smoke-free policy.