Legal Information for Renters
Smoke-free apartment policies are legal and are permitted under federal and Minnesota law. Smokers are not a protected legal class, so there is no “right to smoke” under any U.S. law.(1) Laws do exist, however, that can assert your rights to a smoke-free apartment. The Tobacco Control Legal Consortium has several publications related to secondhand smoke in multi-unit properties including There is no Constitutional Right to Smoke and Regulating Smoking in Multi-Unit Housing. ChangeLab Solutions in California has created an overview of legal options for residents. Note: some of the information in the ChangeLab Solutions document is specific to California state law, but many of the strategies can be used in any state.
Even if your lease does not specifically mention secondhand smoke, it may contain provisions that could be used to alleviate exposure to secondhand smoke. Many leases contain a 'nusiance clause' to protect residents from such things as a neighbor's excessively loud music. This clause could potentially be used to protect you from secondhand smoke infiltration.
The Minnesota Clean Indoor Air Act (1975) and the Freedom to Breathe Act amendments (2007) require the indoor common areas of rental apartment buildings to be smoke free. Common areas include hallways, laundry rooms, underground garages, indoor pool areas, rental offices, and party rooms. Some areas external to, or outsitde of, the apartment building may be considered 'indoor spaces' if these structures have a roof and are covered on more than 50% of the sides. This could include gazebos, areas adjacent to a pool, or other shelters.
Even though the Minnesota Clean Indoor Air Act only covers indoor common areas, it specifically states that nothing prohibits a property owner or manager “from taking more stringent measures . . . to protect individuals from secondhand smoke.” This means that property managers can legally make their buildings and property completely smoke free.
For more information, see "Freedom to Breathe in Rental Apartment Buildings," created by the Minnesota Department of Health, or visit the Minnesota Clean Indoor Air Act web page.
Nonsmokers with serious and debilitating health conditions, such as asthma or heart disease may be considered disabled under federal or state disability laws. If secondhand smoke exacerbates these conditions, consult a doctor to have your condition documented. You may be entitlted to reasonable accomodation to prevent exposure to secondhand smoke.
For more information on federal disability law as it applies to housing or to submit a complaint, check the Department of Housing and Urban Development's website.
For information on filing a complaint with the Minnesota Department of Human Rights, go to their website.
According to the U.S. Department of Housing and Urban Development (HUD), managers or owners of publicly assisted housing can ban or otherwise restrict smoking at their property. A HUD notice on smoke-free policies for public housing was issued in 2009 and renewed in 2012; the notice for Section-8 properties was originally issued 2010 and reissued in 2012.
On November 30, 2016, HUD announced a final rule prohibiting smoking in public housing. The rule requires public housing agencies (PHAs) administering public housing to adopt a smoke-free policy by July 30, 2018. The rule prohibits smoking, including cigarettes, cigars, pipes, and hookah inside public housing and outdoor areas within 25 feet of housing and administrative office buildings. The rule does not apply to Section 8 properties.
If owners of Section 8 properties seek to make their buildings smoke free, HUD requires them to follow any state and local notice requirements as well as HUD notice requirements, before implementing the smoke-free policy. The method for implementing a smoke-free policy for federally assisted housing varies depending on the type of housing. For some properties the smoke-free language can be added to the lease; for others a new house rule can be adopted. The Public Health Law Center developed a chart that reviews the implementation and enforcement guidelines for private and assited housing.
On August 1, 2007, the Minneapolis, Field Office of HUD responded to an inquiry by an attorney from the Public Health Law Center. The letter from the Chief Counsel at the Minneapolis office explains that HUD does not have any restrictions preventing owners or managers of HUD assisted housing in Minnesota from creating a smoke-free policy for their buildings.
Should alternative solutions fail, legal actions can be pursued by nonsmoking residents to try to get relief from the secondhand smoke exposure. Legal actions, such as, "breach of the covenant of quiet of quiet enjoyment," "negligence," "nuisance," and "breach of warranty of habitability have been used in some cases. Residents afflicted with breathing disorders or heart conditions may use federal or state disability statutes for help resolving their problems with secondhand smoke.
Live Smoke Free has created a directory of legal resources available for renters. More information regarding legal rights can be found from the Public Health Law Center and the Tobacco Control Legal Consortium.