Boston Smoke-Free Homes - Rights and Responsibilities

It’s Your Choice. If residents are smoking in your building, and you wish to eliminate the health risks of secondhand smoke, not to mention smoke damage and fire hazards, it is completely up to you as the property owner to make that choice. Similarly, if members of a condominium association want their condominium complex to be smoke-free, the unit owners can vote to amend the condominium rules and establish a no smoking rule. outside of apartment building.JPG

The Law. According to attorney and former U.S. Magistrate Judge Jay R. Petterson:

"If you decide to adopt a smoke-free policy for your building, be assured that this is not prohibited by law. A smoke-free policy remains part of the inherent rights of one who owns property, and should be viewed as preserving the value of your property and a protection of your (residents).”

There is nothing under Federal or State law that prohibits the establishment of smoke-free policies in multi-unit dweelings. In fact, federal law actually provides some protection for those with severe breathing problems that are exacerbated by secondhand smoke. The Fair Housing Act (FHA), among other things, prohibits discrimination against people with disabilities, including those with severe breathing problems. The FHA prohibits such discrimination by owners and operators of most housing, including most apartments, Section 8 and other HUD-assisted housing.

It is important to note that those who own and manage subsidized housing should seek all necessary approvals and prescribe to the specific process required by their subsidy program before making their property smoke-free.

Workplaces and common areas of any building where the public is invited must already be smoke-free under Massachusetts’ Smoke-Free Workplace Law. In an apartment or condominium, this would include hallways, laundry rooms and any other area of the building that is cleaned, maintained or occupied by a worker (i.e. contractor or employee of the owner or property management company).

You've Got Support. Public officials and public health organizations like ours, the Boston Public Health Commission, can help you establish a smoke-free policy. This site contains sample policies, suggestions for implementation, tips, resources, links, and more!

For specific information depending on the type of building you own or manage, see these sections below:

Apartments
Condominiums
Subsidized Housing

APARTMENTS

The lease or rental agreement that you sign with your tenants determines how changes may be made during the term of the agreement. For new tenants, you can simply write into your leases "No smoking anywhere on the property, including inside any apartment." Or, utilize this sample No Smoking Lease Addendum in addition to your lease agreement. For existing tenants, utilize the sample No Smoking Lease Addendum when having then renew their leases. The No Smoking Lease Addendum can also be used for anyone paying month-to-month without a lease (on the day the rent is due).

Liability. Insurance companies may offer special discounted rates for buildings that prohibit smoking because they reduce the risk of fire for all individuals. Check with your insurance carrier.

Common Areas. Landlords can make common areas smoke-free without changing their tenants’ leases. Landlords simply need to provide notice of the change. It is important for landlords to note that workplaces and common areas of any building where the public is invited or where employees work must already be smoke-free under Massachusetts’ Smoke-Free Workplace Law. In an apartment, this would include hallways, laundry rooms, and any other area of the building that is cleaned, maintained or occupied by a worker (i.e. contractor or employee of the owner or property management company).

See our Ten Tips for more information on how to implement a smoke-free policy in your apartment building.

CONDOMINIUMS

Condominium boards and associations have the legal right to adopt smoke-free housing policies.

Condominium associations often seek to create smoke-free policies because homeowners understand it to be a good investment. Smoke-free policies reduce money spent on cleaning and repainting as well as lowering the risk of fire. These policies are enforced just like any other condominium policy such as restrictions on noise or pets. Enforcement is usually quite easy.

Policy Options Inside Residential Units:

Non-smoking units. Condominium associations can make buildings completely smoke-free by securing a favorable vote of unit owners (typically 75%). The rule can be implemented immediately with this Sample Bylaw Amendment.

Smoking Units. If a condominium association decides to deem some units as “smoking units” or to “grandfather in” existing units (meaning that they will allow smoking there until the unit is sold, opting for a phase in approach), it is advisable and legal to include in the condominium rules that all smoking/grandfathered units would be subject to any nuisance complaints from other residents. If a complaint of health problems occurs due to smoke passing into other units or down hallways, the board can require residents to stop smoking in their units. Utilize this Sample Bylaw Amendment for Phase In Approach.
Condominium associations can, without holding a vote of unit owners, make all common areas smoke-free. Use the Sample No Smoking Rule for Common Areas and Sample Notice of No Smoking Rule for Common Areas.
Liability. Insurance companies may offer special discounted rates for buildings that prohibit smoking because they reduce the risk of fire. Check with your insurance carrier.

Common Areas. The condominium association can typically make all common areas smoke-free without having to hold a vote of the unit owners. Condominium bylaws usually allow the condominium association to establish rules for the common areas. Such a rule would help ensure compliance with the Massachusetts Smoke-Free Workplace Law. Under this law, workplaces and common areas of any building where the public is invited must already be smoke-free. In a condominium, this would include hallways, laundry rooms and any other area of the building that is cleaned, maintained or occupied by a worker (i.e. contractor or employee of the condominium association or property management company).

See our Ten Tips for implementing a smoke-free policy in your condominium complex.

SUBSIDIZED HOUSING

In subsidized housing, landlords may establish a no-smoking policy in their buildings. For new residents, the owner can establish the policy before new tenants move into the building. For existing residents, landlords may add Model Lease Language for Smoke-Free Housing to the lease at the time it is renewed, as long as the appropriate state or federal authority has approved the lease change if such approval is required. Landlords may allow existing residents to continue to smoke in their units as long as they live there (opting for a “phased-in approach” to a smoke-free policy), but are not required to do so – and there are both pros and cons to this approach. Speaking to other owners that have already established smoke-free policies might be helpful to landlords in determining how they want to proceed.

Some important facts for subsidized housing:

Affordable housing programs do not preclude smoke-free policies. There are successful examples across all kinds of subsidy programs (public housing, Section 8, privately-owned affordable housing, etc.). See a listing of public housing authorities across the country that have implemented smoke-free policies.
You may need to seek approvals and prescribe to a specific process to implement a policy depending upon the subsidy program.

The information and materials contained on this web site are for informational purposes only and should not be construed as legal advice, nor should they be a substitute for obtaining legal advice from a licensed attorney.