Can you refuse to rent to smokers?

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03/23/2017 | Author: TAR Legal Staff

I manage rental properties for a client who doesn’t want people smoking on his property. If we deny a potential tenant’s application because he or she smokes, will this violate any federal fair-housing laws?

No, this will not violate federal fair-housing laws. Federal fair-housing laws make it illegal for the landlord to choose tenants based on their race, color, sex, national origin, religion, handicap, and familial status. However, people who smoke are not a protected class. A landlord can refuse to lease to potential tenants who smoke as long as the landlord consistently enforces such prohibition.

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Categories: Legal, Landlords, Renters
Tags: property management, leasing, legal, legal faq, fair housing


Stuart Scholer on 03/24/2017

The TAR-2001 paragraph 17 has some simple verbiage for costs and deductions for odor and damage caused by smokers…  even for cigarette butts.  I charge a dollar for each one that I pick up on my commercial property.

Cyndi on 03/24/2017

All of our leases specific state no smoking in house!  Can we include a clause that allows retention of deposit for the odor smoke leaves in a property, for removal?

David Dalzell on 03/24/2017

David, as always you bring sound advice to any discussion.  However, “common sense”, “what would you do if you were on the jury” and “intent” do not always protect you in discrimination situations.  Often, if not usually, it is not a “jury of your peers” but an administrative law judge that makes the ruling.  Past cases show that they do not have to follow, and may not even consider, “what makes common sense” but rather a strict interpretation of the law and a purposeful bias towards protecting the “protected class”.  There are several cases pointing out that “intent to discriminate” and/or “prejudice” was not considered or given any weight in the final ruling; but the “affect” of the action on the protected class even when there is no “prejudice” or “intent to discriminate”.
In discrimination cases “well intentioned actions or inaction” may cause discrimination.
Thus, your advice, that when in doubt seek legal advice, is perhaps the best action.
We are blessed to have excellent legal assistance through the Legal Hotline and the TAR “FAQ’s”...but even with that help we may from time to time need direct legal counsel.

David Davis on 03/24/2017

Without discriminating against any protected class, I believe, as any potential jurror would, that if an act or omission damaged a property (such as curry might) then it could be excluded in the landlord’s rules without fear of discrimination suit.

If on the other hand it could shown that the sole purpose of imposing the rule were to exclude a certain class of people based upon the act (outside the act itself) then that would constitute discrimination.

I know we as REALTORS are not supposed to practice law, but we are supposed to exercise good, and sound judgment. in our actions.  Part of that might be advising a landlord to seek the advise of legal counsel, but at the same time use common sense.  If you (Mr/Ms. Client) were setting in that jury box, what would YOU do?  How would you decide this matter if the case was your’s to decide for someone else?  What if it was your son, daughter, mother or father being sued by the landlord for the curry incident?  If you can’t answer that question, then you NEED to talk to any attorney!

Someone mentioned pets.  You need to be aware that pets (under certain circumstances) cannot be excluded from property.  Service animals, including emotional support are protected and must be allowed.

Dave Dalzell on 03/24/2017

Stuart:  Be careful.  A “No-Curry” policy may affect one protected class more than those of the general population.  If so, it can be ruled “discrimination” based on the affect of the policy.  There are several court cases dealing with this type of discrimination.
That is one reason these discussions are so great.  What on the surface seems like such a basic policy to protect a landlord may in the end become a reason the property manager and/or the landlord end up in court. 
TAR legal department, thanks for helping us think through what seems like a simple topic that may have extended implications if we don’t stop to look at the final results and maybe even seek a legal opinion before we just start a “no-this” or “no-that” policy.

Stuart Scholer on 03/23/2017

Hey Walt. Curry is not a deadly, highly addictive substance that leaves dangerous multi-chemical residues wherever it is used. But hey…. I’ll bet you could prohibit it if you were consistent.  smile

Mona Shaboon on 03/23/2017

Interesting Everlasting Argument. We know Smokers are not a protected class. One can only hope one day Smoking would be prohibited inside any property. If tenants must smoke just go ahead ...but OUTSIDE the building…

Dave Dalzell on 03/23/2017

Eric, it is interesting that you brought up “not allowing pets” because whether or not an animal is allowed on a property has become “THE” biggest issue in Property Management.

Dave Dalzell on 03/23/2017

We have to remember there is no “promulgated” lease form.  TAR has developed it’s own lease form which is recommended for use of TAR members.  In the TAR Lease form “Non-Smoking” is a check mark option.  So there are many different forms and even in the TAR form we still must make a choice whether that Landlord allows smoking or not.

Bob Micklos on 03/23/2017

The following are the “Protected Classes”, under Federal Law:
Race – Civil Rights Act of 1964
Color – Civil Rights Act of 1964
Religion – Civil Rights Act of 1964
National origin – Civil Rights Act of 1964
Age (40 and over) – Age Discrimination in Employment Act of 1967
Sex – Equal Pay Act of 1963 and Civil Rights Act of 1964
The Equal Employment Opportunity Commission includes discrimination based on gender presentation and sexual orientation as protected beneath the class of ‘sex’[1]
Pregnancy – Pregnancy Discrimination Act
Citizenship – Immigration Reform and Control Act
Familial status – Civil Rights Act of 1968 Title VIII: Housing cannot discriminate for having children, with an exception for senior housing
Disability status – Rehabilitation Act of 1973 and Americans with Disabilities Act of 1990
Veteran status – Vietnam Era Veterans’ Readjustment Assistance Act of 1974 and Uniformed Services Employment and Reemployment Rights Act
Genetic information – Genetic Information Nondiscrimination Act

Since smokers are not a protected class, you may refuse to rent to them.  If the smokers are a member of a protected class, you MAY have a problem, because of that.  But, it is not illegal to “discriminate” “against” smokers.

Eric on 03/23/2017

I can’t believe this was aa actual question! Are there that many real estate “professionals” who don’t know this law? I don’t know whether to be concerned or encouraged by that lack of knowledge of other agents out there. This question might as well ask if not allowing pets is a violation…


Peg Langen on 03/23/2017

The promulgated residential lease prohibits smoking on the premises.

Dave Dalzell on 03/23/2017

The word “consistency” gives a few Property Managers concern; but I believe we are talking about the “LANDLORD” being consistent.  Usually we are the “PROPERTY MANAGER” and should remember the owner of the property is the Landlord.  Thus, I think, Property Managers can manage many different properties with different rules from different owners.  One property may be “No Smoking” and another may allow it, based on direction from the Owner/Landlord.  This is probably a much better way of handling the issue rather than basing your policy on price, or neighborhood, or something else that might be deemed to affect one protected class more than another.    As always, I am not an attorney and not giving legal advice.  The TAR Legal Hotline or FAQ’s on the website are always a good resources in situations like this.

Rudy Gonzalez on 03/23/2017

What should the renters insurance be required to include?

Walt Temple on 03/23/2017

Can we also apply the same logic for tenants and cooking Curry?


David Davis on 03/23/2017

The way you address the in the property or on the property is maybe by changing the definition to “on the premises.”

How would it be enforced or monitored?  Simple?  Any number of surveillance mechanisms/monitors that would notify the manager if certain chemicals are detected.  Airliners use them all the time.  I believe federal government assisted housing is now all non-smoking.  Seems like I read that somewhere.

Gerald Vokolek on 02/13/2015

The owner of the property determines the conditions under which they will rent the property. As long as their conditions do not violate the federal Fair Housing laws.
I believe the consistency spoken about is using the same standard for each applicant.
The “no smoking” requirement should be part of the lease. You probably want to be specific whether smoking in not permitted IN the property or ON the property.
I suggest you call your title company attorney to get the best wording for this provision of the lease.

Janet Stafford on 02/06/2015

The word consistent bothers me.  Exactly how are we to monitor that the tenant is actually not smoking in the property?  Yes, I know, visit the property….but how often to “visit” is another thing.  Most of the time you don’t know until they vacate the property.  Does EVERY property you manage have to have these same rules?  It should be a matter of the property, not the renter…......for some it is OK & for others, devastating.  Can we require tenants “of some of the better properties” to carry renter’s insurance??  This should solve the problem and pay to repaint or recarpet.  USAA pd a claim once for me on “heavy candle burners”  to clean & repaint a house; I got the house to sell & was not the property mgr.

Clayton Collins on 02/06/2015

the important thing is to maintain consistency.  As long you have the same standards for everyone, it isn’t a problem, it’s the same way with pets

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