Healthier Buildings, Happier Residents,
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 exist that can be used to assert your rights to a smoke-free apartment. The Technical Assistance Legal Center in California has created an overview of legal options for tenants. 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.
Provisions in your lease, such as nuisance clauses, that may be of assistance in protecting you from secondhand smoke. Your lease may not mention secondhand smoke specifically, but clauses with other examples, such as noise, may also be applied to secondhand smoke.
The Minnesota Clean Indoor Air Act (1975) and the Freedom to Breathe amendment (2007) require the common areas of apartment buildings to be smoke free. Common areas include hallways, laundry rooms, underground garages, indoor pool areas, rental offices, and party rooms.
Even though Minnesota laws only cover common areas, Freedom to Breathe specifically states that nothing prohibits a landlord “from taking more stringent measures . . . to protect individuals from secondhand smoke.” This means that landlords can legally make their buildings 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 Act web page at http://www.health.state.mn.us/freedomtobreathe/.
Nonsmokers with serious breathing disabilities or smoke allergies have legal protection under the ADA. If secondhand smoke exposure seriously affects your ability to breathe, consult a doctor to have your condition documented.
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.(2)
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 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.
Should alternative solutions fail, various basis for legal actions can be utilized by nonsmoking residents, including "breach of covenant," "negligence," "nuisance," "breach of warranty of habitability," "battery," "intentional infliction of emotional distress," "trespass," and "constructive eviction." Residents afflicted with breathing disorders may use the Americans with Disabilities Act and/or the Fair Housing Act for help in resolving their problems with secondhand smoke. Other possible legal avenues may include violations of state and local building codes and sanitary codes.
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 (www.publichealthlawcenter.org) and the Tobacco Control Legal Consortium (http://tclconline.org).