Dealing with Secondhand Smoke in Your Virginia Home

Every Virginia tenant knows that living in an apartment or condo complex is often challenging, especially when your neighbors’ actions interfere with your life in unpleasant ways. Along with noisy neighbors, secondhand smoke is increasingly becoming a common tenant complaint. Whether you have a respiratory problem such as asthma, are concerned about the health effects of secondhand smoke (especially if you have children at home), or simply don't like the smell of cigarette smoke wafting into your apartment, there are steps you can take to try to limit your neighbors' smoking or stop it altogether.

Depending on where you live in Virginia, the law may be on your side. Although there is no statewide ban on smoking in private residences in Virginia, tenants living in public housing or university housing may have nonsmoking policies in place. Regardless of where you call home in Virginia, you have some options for dealing with secondhand smoke, specifically cigarette smoke. For advice on dealing with marijuana smoke, see Nolo articles on stopping marijuana smoke from affecting your family and special issues regarding marijuana smoking in condo associations.

Check Your Lease or Rental Agreement

As nonsmoking laws become more prevalent (such as in the workplace; see Va. Code Ann. § § 15.2-2820 through 15.2-2833), more and more landlords are enacting nonsmoking policies in their buildings. There is no legal right to smoke, so landlords can create any type of smoking policy they want—as long as smoking areas and nonsmoking areas are clearly designated in the building.

If you're concerned about secondhand smoking, one of the first things you should do is check your lease regarding smoking policies. If your lease does not include a smoking policy, ask your landlord if there is one. If your landlord has one, ask for it in writing and include it as part of the lease. (Ideally, you will have done this before signing a lease, especially if you or someone in your family is particularly sensitive to secondhand smoke.)

If you live in a condo, you should also check with your homeowners’ association (HOA) to see if there are smoking restrictions for your building or common areas. Be sure to also look at provisions in the lease (or CC&Rs, if an HOA) that deal with nuisances, as secondhand smoke can be considered a legal nuisance in some situations.

Check Local Nonsmoking Laws

Currently, Virginia does not have a statewide law prohibiting smoking in private residential units, such as apartments and condos. In fact, Virginia law prohibits local governments from enacting nonsmoking ordinances that are stricter than Virginia’s Indoor Clean Air Act, which prohibits smoking in most public places but not private places. However, landlords are free to enact nonsmoking policies in their apartment and condo buildings. The Alexandria Coalition for Clean and Smoke Free Air provides useful information for both landlords and tenants who want to create smoke-free housing or who want to know about their respective rights and responsibilities when it comes to smoking in rental units.

If you live in public housing or university housing, you are more likely to have laws that restrict or prohibit smoking in your apartment or common areas. In fact, the Department of Housing and Urban Development (HUD), which regulates public housing across the nation, recently announced that all public housing must be smoke free by 2018. Likewise, some Virginia universities have also adopted smoke-free policies, including Regent University and Eastern Virginia Medical School.

To see if your city or county has a law prohibiting or restricting smoking in private or public residences, visit the American Nonsmokers’ Rights Foundation; this organization also has extensive resources for tenants concerned with secondhand smoke (as well as information on e-cigarettes and vaping). To check if your university is smoke or tobacco free, visit the Tobacco Free College Campus Initiative.

Talk to Your Landlord

If you have found that either your lease or a local law prohibits or restricts smoking in rental units, you should first try talking to your landlord about the situation. If other tenants are affected by secondhand smoke, see if they will join you in expressing concerns to the landlord. You should explain the lease provisions or laws and ask your landlord to enforce them to get the offending neighbor to stop smoking. You may feel more comfortable writing your landlord a letter or sending an email, rather than talking face-to-face. Putting your research in writing and asking for reasonable solutions can often be effective in solving the problem. Keep copies of all letters, emails, or notes of meetings with your landlord in case you need them for any future legal actions.

Remember to be respectful in your communications with your landlord. Detail your concerns and the problems you have been having with the secondhand smoke, and point out the specific lease provision or law that prohibits or restricts smoking in your apartment building or condo complex. Provide some potential solutions to the problem (such as fixing cracks in the walls or repairing faulty vents that allow smoke to drift into your home from a neighboring apartment). Be sure to leave your contact information so the landlord can discuss the matter with you further.

Even if you have not found a lease provision or local law that prohibits or restricts smoking on the rental property, you (and any other concerned tenants) should still try to talk to your landlord, especially if your health (or another family member's) is at risk from secondhand smoking. Perhaps you can help your landlord establish a smoking policy in your apartment complex. You might be able to come up with a reasonable compromise, such as restricting smoking to certain areas or times. The American Lung Association website has lots of useful information to help support your case; see, for example, Smokefree Policies in Multi-Unit Housing - Steps for Success.

Your Legal Options When It Comes to Secondhand Smoking

If you can't reach a solution with your landlord and the secondhand smoke is disrupting your life or affecting your health, then you might consider moving out. Depending on the situation, you may have the right to break your lease because of the health effects of the secondhand smoking.

Depending on the severity of the problem, you may even want to consider bringing a lawsuit against the rental property owner. You might be able to claim that the secondhand smoke constitutes a nuisance or disrupts your right to quiet enjoyment of the rental unit. The Alexandria Coalition for Clean and Smoke Free Air provides some information on a tenant’s legal rights with regards to secondhand smoke and different legal remedies.

If you want to sue for money damages only (such as for dry cleaning or medical bills related to the secondhand smoke), you could consider bringing a lawsuit in small claims court. In Virginia, you can sue for up to $5,000 in small claims court.

Remember that lawsuits like this can be costly, time consuming, and damaging to relationships. You should consult a lawyer before making the decision to sue and consider whether bringing the lawsuit is worth the trouble.