The Property Management Shop

Should You Have a No Smoking Addendum?

by Marc Wilson

Q. One of my tenants has evolved into a chain smoker. He was always a casual smoker, but now he is semiretired and at home (and smoking) just about all the time. The walls inside his apartment are brown, and the common areas reek of cigarette smoke. His neighbors are complaining bitterly. He doesn’t respond to my requests to minimize the amount of secondhand smoke emanating from his apartment. Last week I got a threatening letter from his attorney warning me to “back off.” What can I do?

A. I have come full circle relative to my position on a tenant’s right to smoke. When I was young and stupid, I allowed smoking within my apartment units or, I should say, I did not disallow smoking within my units. I felt an apartment was a tenant’s home, and a person should be able to smoke the occasional cigar, cigarette or whatever in his own home. I thought that promulgating a blanket prohibition against smoking within my apartments was akin to moralizing. Why should I be in the business of regulating a tenant’s smoking, eating, drinking, television viewing, reading or sexual habits? I figured that smoking in one’s own house was a right or at least a privilege. Boy, was I wrong! By allowing your tenant to smoke in his apartment, you are relying on him to act reasonably and with some level of concern for his neighbors. In short, you trust him to act reasonably and not abuse his right to smoke. However, as you are learning the hard way, forcing a smoking tenant to curb his habit in the absence of an absolute prohibition against smoking is extremely difficult.

I also used to be afraid that I would have trouble renting nonsmoking apartment units. People do smoke and smokers rent apartments. Most people smoke something once in awhile—especially young people. Why limit your pool of prospective renters by disallowing smoking in your properties? Your prospects might go elsewhere if they suspect that you are a “smoke Nazi.” As it turns out, nothing could be further form the truth. I have come to learn that an absolute prohibition against smoking does not make renting my vacant apartments any more difficult. In fact, the opposite is probably true.

I have found that prospective tenants usually fall into one of four categories. In the first category are tenants who do not smoke. They are happy to live in a nonsmoking building and will sign any nonsmoking addendum attached to my rental agreement. Most nonsmoking tenants actually prefer to live within properties where the neighbors share their same feelings about cigarette smoke. A nonsmoking policy will actually attract more nonsmoking applicants and, therefore, more total applicants.

Second, there are the smoking tenants who desperately want to quit. These tenant don’t like the fact that they smoke, are trying to cut back or even quit, and figure that living in a nonsmoking property will help rid them of this evil habit. They will sign a smoking prohibition because they honestly believe that they will be able to resist the temptation to smoke in their apartments. These tenants are no less likely to rent your apartments because there is a smoking prohibition; they might even be more likely to rent your apartments.

Third, you may encounter moderate smokers who accept the fact that they probably can’t or won’t quit. They do, however, believe that they will either step outside to smoke or smoke infrequently enough in order to avoid the wrath of the management or the ire of their neighbors. One way or the other, this type of tenant is fine with me and, in general, no less likely to rent an apartment with a prohibition against smoking. In the end, all I care about is that my tenants receive, read and approve my absolute prohibition against smoking. I really don’t care if they smoke reasonably within my apartments. I just need to be able to “act” if they do not act reasonably.

And last, there are real nicotine freaks who smoke all the time. They smoke in their cars and in their apartments; they only go to bars that allow smoking; and they buy their cigarettes wholesale, cases at a time. This is exactly the type of smoking tenant that you do not want to set up shop in one of your apartments. And, most important, this is the kind of tenant who should make you mandate that all new tenants sign a prohibition against smoking. You cannot trust any nicotine freak to act responsibly or with any regard for his neighbors. And you cannot reasonably control the actions of a chronic smoker in the absence of a smoking prohibition. The irony is that this category of smoker is probably as likely to sign a smoking prohibition to rent an apartment as a nonsmoker, and I don’t really care. The important thing is that I have the right to enforce a smoking prohibition if my tenants act irresponsibly.

So now I know that it is not more difficult to rent nonsmoking apartments, but I still don’t advertise my vacant apartments as “nonsmoking.” The subject never gets discussed. I have a nifty little one paragraph addendum that I bury someplace in my 20-page rental agreement. It’s called a “no smoking addendum,” and it basically incorporates all the rules and regulations contained in the CAA’s “Addendum for Tobacco Smoke-Free Areas.” (This is a good form, though a tad verbose. You can order it from the SFAA.) I have never had a prospective tenant baulk when confronted with my no smoking addendum. I don’t care if my tenants smoke reasonably within their apartments. But rest assured, I cannot and will not rent apartments without a no smoking addendum. I cannot trust San Francisco tenants to act responsibly. So, the tenant will need to trust me. The tenant will need to trust that I will not unreasonably invoke the addendum.

What can you do about your smoking tenant? Try the following steps, which I have found work quite effectively:

educate your tenant who might not realize he is a chain smoker, obtain written letters of complaint from his neighbors, forward copies of these letters to the offending tenant, and send the smoking tenant articles about the dangers of secondhand smoke;
do whatever you can to minimize how the smoke travels throughout the building by installing fans, air purifiers, door insulation and other smoke blockers;
offer an alternative outdoor smoking area and encourage the offending tenant to smoke in the backyard or outside in front of the property;
help your tenant understand that you, as the property manager, and the other tenants are not completely without rights by explaining that a certain number of daily cigarettes smoked within the apartment will constitute a nuisance, health risks for the other tenants and, quite possibly, “waste” (clearly, a certain number of daily cigarettes will force me to act); and
as a last resort, hire an attorney and do it all the hard and expensive way. When handled correctly, even the worst nicotine freaks can be cajoled, persuaded, encouraged, inspired, shamed or even threatened (see the last item) into reasonable compliance. In their heart of hearts, most people want to quit smoking.

The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of SFAA or the San Francisco Apartment Magazine. Marc Wilson is the president of SFAA and has specialized in the brokerage of San Francisco apartment buildings for 20 years. He can be reached at 415-229-1275. Copyright � 2006 by the San Francisco Apartment Magazine. All rights reserved.