E-cigarettes and vaporizers are widely sold hand-held devices that deliver a vapor of heated liquid (e-liquid), which the user inhales. Rather than exhaling smoke (as happens with a traditional cigarette), the user exhales vapor. Although these devices don’t contain or burn tobacco, most e-liquids they vaporize contain nicotine derived from tobacco. The U.S. Food and Drug Administration (FDA) considers e-cigarettes, vaporizers, all related accessories, and e-liquids (even those that are nicotine-free) to be tobacco products. E-cigarettes and vaporizers come in many shapes and sizes, and, although the devices differ, many statutes use the terms “e-cigarettes,” “vaporizers,” and “electronic cigarettes” interchangeably to refer to all types of devices that people use to inhale heated liquid.
Because vaporizers don’t burn tobacco, they don’t produce certain known carcinogens, such as tar and other by-products. For this reason, e-cigarettes have been touted as safer than traditional tobacco products such as cigarettes, pipes, and cigars. However, research has increasingly shown that the devices pose some risk to both the user and those who breathe the vapors second-hand.
Landlords and tenants are familiar with the question of tobacco use in residential settings. Landlords have the right to restrict tobacco use on their properties (both single-family and multi-tenant). Tenants who desire a smoke-free living environment look for rentals that have adopted rules against smoking in common areas and even in individual living units. Many states and cities recognize the health risks of second-hand smoke, and have passed laws and ordinances requiring multi-family properties to be smoke-free. Smokers’ challenges of these laws (involving a “right to smoke”) have universally failed.
Most of the no-smoking laws and ordinances that pertain to multi-family housing were passed before the advent of the vaping device, and for that reason, they commonly referred to tobacco smoke. As vaping entered the picture, legislators amended their laws to include tobacco vapors. For example, the Minnesota Clean Indoor Air Act originally covered only smoked tobacco; it was amended in 2019 to include tobacco vapors. Many other states have changed their no-smoking laws to include e-cigarettes, such as California, Colorado, and New Jersey. Dozens of municipalities have passed local ordinances in the absence of a state-wide ban. Landlords whose properties are subject to no-smoking laws or ordinances that specifically include vaporized tobacco not only can, but must, prohibit vaping on their properties.
Although the trend is to prohibit smoking (and vaping) in multi-tenant properties, in some states no law or ordinance prohibits vaping (let alone smoking tobacco) in individual units in multi-family rentals, and even in common areas. Tenants who desire smoke- and vape-free environments must look for properties whose owners have imposed their own rules. But what about the tenant who lives in a property that is subject to no smoking or vaping law, ordinance or policy? Is that tenant out of luck when it comes to successfully protesting the presence of vaped e-liquids? Fortunately, this tenant might have one or more powerful tools to compel landlords to snuff out both smoke and vapors.
All tenants are entitled to the “quiet enjoyment” of their rentals, which includes being free of excessive noise, interference, illegal activities, obnoxious activities, and—you guessed it—smells. Tenants have successfully invoked this right when objecting to constant and heavy barbecue smoke entering their windows nightly from a downstairs neighbor’s grill, or to a neighbor’s loud music at all hours of the day and night, and to the presence of tobacco smoke. When landlords get such complaints, they must evaluate the seriousness of the situation and direct the other tenant to cease the activity if they decide that the interference is substantial. Not doing so might give the complaining tenant a legal excuse to break a lease, with no obligation for future rent. The complaining tenant normally does not have other legal recourse, however.
If the landlord refuses to deal with the problem, the tenant’s only recourse (depending on state and local law) might be to move out. At least, however, the tenant won’t be responsible for rent for the balance of the lease term, as long as the problem was so severe as to constitute a “constructive eviction.” That’s legalese for saying that any reasonable person in this situation would have had no choice but to leave home, and when that happens, the lease is extinguished. Tenants who believe that conditions at their rental rise to the level of constructive eviction should consider consulting with a local landlord-tenant attorney, as laws vary and might impose certain requirements before a tenant can move out.
Tenants may also approach the problem as a violation of their rights to a “fit and habitable” living situation. All landlords (except those in Arkansas not covered by a local law) must maintain fit and livable premises, which involves the absence of vermin, watertight walls and roofs, working plumbing; and might include the absence of second-hand smoke or vapor. Here, unlike the “covenant of quiet enjoyment” theory explained above, the tenant has more than one way to react if secondhand smoke or vapors makes the rental unhealthy and the landlord fails to address it. In addition to breaking the lease with impunity, tenants may usually withhold the rent until the landlord acts. Again, because vaping in one’s apartment is not a protected tenant right, landlords are on safe ground if they institute a rule that it will be vape-free.
Knowing whether any state or local law addresses vaping specifically is a tricky issue. Both landlords and tenants would be wise to contact a lawyer experienced in landlord-tenant law to determine how to address the issue of vaping in multi-family settings.