Tenants Don’t Have the Right to Smoke in Rochester New York

Landlords may ban smoking in apartment units, as well as in common areas, such as halls and playgrounds. Tenants have unsuccessfully sued for the “right” to smoke. The New York Supreme Court, Albany County ruled that there is no more a fundamental right to smoke cigarettes than “there is to shoot up or snort heroin or cocaine or run a red light”. The 2006 U.S. Surgeon General’s Report warned that there is no risk-free level of exposure to secondhand smoke and that even small amounts of exposure can be harmful to people’s health. Secondhand smoke seeps through electrical outlets, pipes, light fixtures, ceiling crawl spaces and doorways into all areas of the building. Even the most up-to-date ventilation techniques and air cleaners cannot prevent all smoke from spreading. There are six reasons why landlords should ban smoking:

    1. Most tenants want smoke-free apartments. Only 20% of the adult population smokes.
  • Tenants are willing to pay higher rents for smoke-free apartments.
  • Landlords can be held liable for tenant’s health problems from secondhand smoke and fires caused by tenants smoking. There are more than 4,000 toxins and 50 cancer-causing chemicals in tobacco smoke.
  • Tenants can break their leases for breach of the warranty of habitability, nuisance and breach of the warranty of quiet enjoyment. The New York County Civil Court permitted tenants to break a lease because secondhand smoke penetrated into their apartment from another apartment. The court held that secondhand smoke was covered by the implied warranty of habitability which requires that the premises and all common areas be fit for human habitation and not subject the tenants to any condition which is dangerous, hazardous or detrimental to their life, health or safety.
  • Cigarette smoke damages the apartment and increases the risk of fires. It may result in the need to replace carpeting, vinyl appliances, flooring, sub-flooring, light fixtures, cabinets and ceiling fans and the use of special sealants to control odors before painting.
  • Proposed laws will require smoke-free apartments.

In order to make apartments smoke-free, landlords should do the following:

    1. Advertise apartments as being smoke-free.
  • Include a no-smoking rule in the lease which requires tenants to pay for any damages caused by smoking.
  • Post “No Smoking” signs in the building and throughout the grounds.
  • Provide a marked designated outdoor smoking area at least twenty-five feet away from windows and doors to accommodate tenants who smoke.