Should You Allow Smoking in Your Rental?

If you've never had a smoking tenant, consider yourself lucky — and unprepared. A smoking policy for landlords isn't just a nice-to-have anymore. It's the industry standard. But if your lease only says "no cigarettes," you may have more gaps than you realize. Vaping, e-cigarettes, cigars, and cannabis all need to be spelled out — and most older leases don't cover them.

Here's what often gets overlooked: the stakes are completely different depending on what kind of property you own. A single-family home carries primarily financial and fire-related risk. But in a duplex or multi-unit building, secondhand smoke travels through shared walls, vents, and HVAC systems — and a non-smoking tenant who's being exposed may have grounds to claim a breach of the implied warranty of habitability. The bigger the building, the higher the legal liability.

In this episode, Kevin and I cover why smoke-free is now the industry standard, what your no-smoking clause actually needs to say, how enforcement works when a tenant violates it, and a real story from our Sacramento six-plex during COVID that made the cost of a weak smoking policy very, very clear.

Nothing on this podcast is legal advice. Please consult a real estate attorney in your state before finalizing any lease language.

Links & References Mentioned in This Episode

Episode 128  AI Is Your New Business Partner 

American Nonsmokers' Rights Foundation 

ChangeLab Solutions (Smoke-Free Housing Resources)

EZ Landlord Forms State Specific Leases for Landlords

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Transcript

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Stacie 0:00

So here's something I want you to think about. When a prospective tenant fills out your rental application, do you ask whether they smoke? And does your lease say anything about it? If your answer is no and no, then you are not operating a neutral policy. You are operating an open door policy, and that can cost you. We're talking thousands of dollars at turnover, potential legal liability, and problems with neighbors that you didn't even know you had. So today on Your Landlord Resource, we're talking about smoking in your rental. Whether you own a single-family home, a duplex, or a multi-family building, this topic hits differently depending on your property type. And we're gonna break all that down, talk about why a no-smoking policy is the industry standard now, how to put it in your lease correctly, and what to actually do if a tenant violates it.

Speaker 2 1:00

Welcome to Your Landlord Resource podcast. Many moons ago, when I started as a landlord, I was as green as it gets. I may have had my real estate license, but I lacked confidence and the hands-on experience needed when it came to dealing with tenants, leases, maintenance, and bookkeeping. After many failed attempts, fast-forward to today, Kevin and I have doubled our doors and created an organized, professionally operated rental property business. Want to go from overwhelmed to confident? If you're an ambitious landlord or maybe one in the making, join us as we provide strategies and teach actionable steps to help you reach your goals and the lifestyle you desire, all while building a streamlined and profitable rental property business. This is Your Landlord Resource Podcast.

Stacie 1:49

Welcome back to Your Landlord Resource. I'm your host, Stacie Casella, and I'm here with my co-host, my husband, and my business partner, Kevin Kilroy.

Kevin 1:59

Hi, landlords, and thanks for sharing your time with us today. We do really appreciate you being here.

Stacie 2:06

Yeah. We're very humbled, thank you. And for anyone new, welcome. Kevin and I are landlords ourselves, and we share pretty much what we've actually lived through in our own portfolio. We own a six-plex in Sacramento, and we also have an out-of-state rental, a four-plex in Boise, Idaho. And trust me, smoking policies have come up in our world for sure.

Kevin 2:31

Yeah. We have had the conversation, we've seen the damage, and we've updated our own leases to make sure we're protected.

Stacie 2:40

Yeah, and, and today we want to help you guys do the same. You know, this is a shorty episode, so we're gonna try to move through it efficiently. There's a lot here, so let's get to it.

Kevin 2:51

So Stace, before we even get into the why, I want to address something because some landlords might be thinking, "Is, is this still really a thing? Isn't smoking way less common than it used to be?"

Stacie 3:06

You know, that is definitely something that we considered before we thought about even doing this episode, and the honest answer is yes and no. Now, the good news is that smoking rates have dropped significantly, but it's still estimated that, just shy of 19% of US adults use at least one commercial tobacco or nicotine product. And while traditional cigarette smoking has fallen to a record low of roughly 9%, vaping has steadily increased. The highest concentration of smokers in the US is found in a group of states across the South and the Midwest, often collectively referred to as Tobacco Nation. Within this region, smoking rates are roughly 40% higher than the rest of the country. And the Tobacco Nation areas face these higher rates due in part to weaker tobacco control policies and lower cigarette taxes. But with all those stats, the majority of your tenant pool is likely not smoking, and frankly, smoke-free housing has become so mainstream that most professional property managers and large landlords have already adopted it as a standard policy. It's not a big controversial ask anymore. But here's why it still matters and why we decided to go forward with the episode. So one, if you are a self-managing landlord who hasn't formalized your lease language around this, you may have gaps. And two, the definition of smoking has really changed over the last five years because we're not just talking about cigarettes anymore. We're talking cigars, pipes, vaping, e-cigarettes, and of course, cannabis, which is now recreationally legal in California and many other states. So a lease that only says no cigarettes or no cigarette smoking doesn't cover the rest of that list, and a lot of old school leases say just that. They did not define smoking as a whole concept, which would address the different ways that people smoked and the substance that they were smoking. And three, the cost when something goes wrong as a result of smoking in that unit is crazy expensive to remedy these days. The smoke and odor damage does not care whether it's trendy or not.

Kevin 5:34

And cannabis is a big one because tenants sometimes assume that if it's legal to use, it's legal to smoke inside their rental. And I'll tell you, those are two very different things.

Stacie 5:47

Yeah. Oh my God, they are. So the legality of the substance and your lease terms are completely separate. You can absolutely prohibit cannabis smoking on your property regardless of state law. And it's important to note that smokers are not a legally protected class. A landlord can legally decline to rent to smokers and can enforce a no smoking policy without running into any fair housing issues that you might have faced if you tried to screen out a protected class. Now, that said, of course, our disclosure here, always run your policies by a real estate attorney in your state before finalizing anything. This podcast is just education and tips that work for us, not legal advice. Okay, I want to get into something that I mentioned in the intro because I think this is underappreciated. Do you all think that it matters what kind of property that you own? Like, is this a different conversation for a single-family home versus a duplex or a bigger multifamily building? One hundred percent it is. And this is important, so we're gonna walk through it now. If you own a single-family home, the stakes are primarily financial and fire-related. There's no shared airspace with another tenant, so you're not dealing with secondhand smoke drifting into a neighbor's unit. Your risks are mostly gonna be things like damage to the property, fire hazards, and the cost of cleanup and remediation at turnover. All very real, but contained to your single-family home rental property. Now let's say you own a duplex. This is where it gets more complicated. You now have two households sharing a wall, possibly sharing an attic or crawl space, and often sharing some HVAC components. Smoke absolutely travels between units, and we've seen landlords get caught in the middle of this. One tenant complains about smoke smell coming through an outlet or a shared wall, with the smoking tenant insisting that they're within their rights to smoke because the lease didn't say otherwise. And you guys, this is not a mess that you want to be dealing with. In a duplex or higher unit property, our view is a smoke-free policy is not optional. It protects your relationship with both tenants.

Kevin 8:17

And with a multifamily property like our Sacramento sixplex, that's a whole other level.

Stacie 8:24

Yep. In a multi-unit property, you could be dealing with shared ventilation systems, and shared common spaces like hallways, laundry rooms, elevators, you know, outdoor patios. Secondhand smoke does not respect lease boundaries. It moves through those HVAC ducts, through electrical outlets, and through plumbing chases. And when a non-smoking tenant is being exposed to smoke in their home, they may have legal grounds to claim that you have breached their right to a habitable space. That's the implied warranty of habitability that it is law and in most leases now. That opens the door to rent withholding, lease termination, or worse. And California is particularly active on this front. So Kev, to answer your question directly, the larger the building, the higher the liability stakes. A single-family home, you'll potentially deal with financial loss or fire liabilities. A duplex or a multifamily unit becomes a legal and habitability issue. The policy should be smoke-free across the board, but understanding why helps you have the right conversation with your tenants.

Kevin 9:38

So let's talk money for a second, you know, the financial side of all of this. Because I think some landlords hear no smoking policy and think, "Well, I'll just charge a deposit or a fee. If they make the whole place smell like smoke, or God forbid the smell of weed, problem solved, right?"

Stacie 9:58

Yeah. You know, this is a really common misconception, and it can be a very expensive one. Here's the reality. The damage from a long-term smoker in a unit can easily exceed, and usually does end up being much more than a standard security deposit. We're talking nicotine and tar residue on every surface, so walls, ceilings, window blinds, inside the cabinet, HVAC filters, and sometimes the ductwork itself. You can't just go in and repaint it. You typically have to clean, seal the walls with an oil-based primer or products like Kilz, the primer, are commonly used, and then you repaint. Carpets usually have to be replaced. They can't just be cleaned. And if smoke has penetrated the HVAC system, you're potentially looking at a professional duct cleaning or even some component replacement. Smoke damage is gnarly. We had a very small fire at my brother's home when tweakers broke in and tried to torch open his gun safe, unsuccessfully I will add. But the torch caused the little bit of wood and the carpet that's inside the safe to catch fire, and absolutely everything that was fabric or porous in that home was ruined. All of the carpeting, the furniture, the drapes, and of course the walls. It cost us thousands to get that house painted 'cause they had to first clean the walls, and then they had to prime it with a special, very expensive odor eliminating primer. And then they had to paint the entire interior of the house. Every single wall, ceiling, doors, frames, molding. All of that from a very small contained fire.

Kevin 11:47

Man, that, that was awful. But I'm sure all you realize how intense cigarette smoke can be when you're a non-smoker. Whether you are entering someone's home or their car, if they smoke, you can usually smell it right away. So if it's your rental that you go into after someone has lived there for years as a smoker, your turnover costs are gonna be huge. But here's the kicker, security deposits in many states are capped. For example, here in California, for an unfurnished unit, it's one month's rent. You cannot add one penny to that for anything extra, like a pet deposit or if they wanna install something like, I don't know, a satellite dish, which we used to be able to add an additional deposit for. So if there is smoke damage, and not to mention any other issues, if your rental smells like smoke, sure you can retain that deposit, but if your deposit is capped to equal one month's rent, you likely will not have enough to cover the cost to paint, much less anything else like replacing blinds throughout the home.

Stacie 13:01

Right. If your remediation bill is higher than that security deposit that you've received, and it often is for a smoking situation, you're eating the difference unless you have rock solid documentation and are prepared to pursue it in small claims court.

Kevin 13:19

Exactly. Plus, this is where documentation at move-in is so important. Always, always, always take photos before someone moves in. Every angle of every room, inside of appliances and cabinets. Do not leave one area or surface undocumented by a photo. Here's where a written checklist noting everything's condition is imperative as well. Do all the burners on the stove work? Do all of the windows and blinds open and close? Does the front door lock properly? And you should note damages that were existing prior as well. Is there a dent in the dishwasher or a deep scratch on the refrigerator or a cracked tile in the bathroom? Those all need to be noted so after they move out, you will know not to charge them for those damages. You often hear us use the dent in the dishwasher as an example of damage noted. That's because way back when, we did not take photos before someone moved in. And we showed up to do their move-out walkthrough and asked them about the dent, and they very confidently said, "Oh, that was there when I moved in." They had lived there for two years, and we had no idea if they were telling us the truth or not, and we also had no way to prove it wasn't indeed there when they moved in. So please document everything and have it dated and signed by both parties. If you ever need to demonstrate the before-and-after condition of a unit, that documentation is your only leverage. All right, sorry that last part wasn't all about smoking, but, you know, it's all related. Bottom line, cover your butt whenever possible.

Stacie 15:15

And you guys, the thing is, it was not that long ago, well, I mean, it was during COVID, when we had a tenant in Sacramento decide that he wanted to start smoking to pass the time. Now, he didn't smoke in the unit, but he sat right outside and smoked on the front stoop. And then he flicked his cigarette butts all over the front of the property, and he left his empty beer bottles piled up there too. It was a very unpleasant situation, and his front door was about three feet away from another unit, and where that tenant never complained, he had every right to. So we took photos. We documented every single time. We kept sending notices, and he would essentially ignore them. And because it was during COVID, here in California, this guy knew that he was fine, that no one would allow us to enforce that law. He stopped paying rent as well, and this was also the tenant who had an unreported flood and fruit fly infestation. I think his deposit was like $1,400. The damage he left us, along with the unpaid rent, was close to $15,000. So chew on that for a minute if you're someone who thinks a security deposit will cover damages. Not usually. Honestly, we were just happy to get him out. We essentially had to red tag that unit and file it as uninhabitable, and it still took a couple months to get him out. Anyway, going back to documenting and using photo evidence, you might be thinking, "Photos can't really help with the smell, though." And that's where you use your checklist to document that there are no foul odors of smoke, pets, cannabis, chemicals, must, or mildew for every single room in your unit. And then have that new tenant sign off on it. That way, when you come back through for that mid-year inspection, because we all do inspections at least once a year, right? When you come back for your inspection and you see ashes on the windowsill or burn holes in the carpet, whatever it is, you can note it, and take photos to use as proof when you notify that tenant that they are in violation of the no smoking clause in the lease.

Kevin 17:39

Okay. I, I think they're all convinced. These listeners agree and want to go smoke-free in their units. So let's talk about what that actually requires. Now, there are two things you need to do to enforce no smoking: a well-written lease clause, and a clear enforcement process. All right, let me give you the highlights on both. On the lease side, your no smoking clause need to do four things: First, define what's prohibited. Don't just say no smoking. You need to spell it out. Cigarettes, cigars, pipes, e-cigarettes, vaping devices, cannabis. Any combustible or electronic smoking device. Second, define where the prohibition applies. Inside the unit, balconies, patios, common areas, or within a set distance of the building. Often, we will see twenty-five feet away from any part of the building. Third, extend it to guests. Your tenant is responsible for their guests' compliance. And fourth, specify consequences. Violations are a material breach of the lease. Documented violations can lead to termination. Remediation costs are the tenant's responsibility and can be charged against the deposit and beyond.

Stacie 19:12

And this clause should be in the lease from day one, not added mid-lease. And we actually just added this to kid two's lease that he uses. It did say no smoking, but it did not address who was responsible for the damages that could arise from smoke and odors. I, I think what we put in read like this: "Tenant shall be responsible for costs associated with smoke remediation, odor removal, HVAC cleaning, fire department charges, and fire-related damages caused by tenant negligence, unauthorized smoking, vaping, candles, grills, or misuse of appliances." I, I think that pretty much covers his butt now. And quick plug here, we used AI to come up with that sentence that I just read. So if you haven't listened to our last episode about how we use AI to help us with our rental business, you can check it out at yourlandlordresource.com/episode128. Also FYI, you generally cannot add new terms like that to an active fixed-term lease. If you have an existing tenant who smokes and the lease doesn't address it, your best window is at renewal. That's when you can introduce new terms. For month-to-month tenancies, you have a little bit more flexibility. Most states allow you to modify terms with proper written notice. But again, check your state's specific requirements with an attorney. All right, let's talk about enforcement. If you discover or suspect a violation, the process is document first, then communicate in writing. Do not just knock on the door and have a conversation. Issue a written lease violation notice that cites the specific clause. It should also describe what was observed and when, and states that continued violation may result in lease termination. Keep a copy for yourself and send it in a documentable way. Email is fine, but CC yourself so you get a copy as well. You can also send a copy via mail to the property address or post it on their front door. Now, if the violations continue, that escalates to a formal notice to cure or quit. And the number of days that they have to stop varies by state. And honestly, if it comes down to that, you want to consider getting an attorney involved anyway.

Kevin 21:44

The key is that because you have it in writing in the lease, you're citing a contract, not getting into an argument.

Stacie 21:52

Yeah, exactly. The lease is what does the talking. Your job is to document and follow the legal process for notification.

Kevin 22:01

All right, you guys, let's wrap this up. So here's a quick recap. Smoke-free policies are the industry standard now. Most professional landlords have already adopted them. If you haven't, now's the time. The stakes depend on your property type. Bigger building, higher liability. The financial cost of smoking damage can and likely would exceed your security deposit. Lease clause needs to be specific, cover all smoking types, and include clear consequences. And if you need to enforce it, document it with photos and notes, write it up, and cite the contract.

Stacie 22:45

And always, nothing we say here is legal advice. Please consult a real estate attorney in your state before finalizing your lease language or taking action on a lease violation. For free resources on drafting smoke-free lease language, check out the American Nonsmokers' Rights Foundation at nosmoke.org. And another one is called ChangeLab Solutions, and you can find them at changelabsolutions.org. Both have solid landlord-specific resources, and we'll link them both in the show notes. All right, you guys, we appreciate you sharing your time with us today. If this episode was helpful, share it with a landlord friend who is still trying to figure all this stuff out. Also, if you could leave us a review wherever you listen, it genuinely helps people find us. In the show notes, we have all the links that you need. You can sign up for our free newsletter, contact us with questions, or send us podcast topic ideas. You can download all of our free guides and our checklists. So go to the show notes and check those out. That is our episode for today, and until next time, you've got this, landlords.