Dealing With Secondhand Smoke in a Rented 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 might 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 might benefit from the existence of nonsmoking policies there.

Regardless of where you call home in Virginia, you have options for dealing with secondhand smoke, specifically cigarette smoke. For advice on dealing with marijuana smoke, read about stopping marijuana smoke from affecting your family and special issues regarding marijuana smoking in condo associations.

Check Your Lease or Rental Agreement for Smoking Policy

As nonsmoking laws become more prevalent (such as in various types of workplaces that serve the public, such as schools and restaurants; see Va. Code §§ 15.2-2820 through 15.2-2833), more and more landlords are adopting nonsmoking policies in their buildings. There is no basic legal right to smoke, so landlords can create any type of smoking policy they want—as long as they clearly designate smoking areas and nonsmoking areas within 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 you don't find a smoking policy, follow up with your landlord. If your landlord has one that somehow wasn't clearly stated in the lease, ask for it in writing and to be included 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.

If you live in public housing or university housing, you are more likely to be the beneficiary of laws that restrict or prohibit smoking in apartments or common areas. The Department of Housing and Urban Development (HUD), which regulates public housing across the nation, required all public housing units to go smoke free by 2018. Likewise, some Virginia universities have adopted smoke-free policies, including Regent University, Virginia Union University, Randolph-Macon College, 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's website, which contains extensive resources for tenants concerned with secondhand smoke (as well as information on e-cigarettes and vaping).

Talk to Your Landlord About Secondhand Smoke Concerns

If you have found that either your lease or a local law prohibits or restricts smoking in rental units, 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 might feel more comfortable writing your landlord a letter or sending an email, rather than talking face-to-face. Putting your research into written form and asking for reasonable solutions can often be effective in solving such problems. Keep copies of all letters, emails, or notes of meetings with your landlord in case you need them for 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 potential solutions (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.

Your Legal Options When It Comes to Secondhand Smoking in Your Leased Unit

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 might have the right to break your lease because of the health effects of the secondhand smoking.

Depending on the severity of the problem, you might even consider bringing a lawsuit against the rental property owner. You could claim that the secondhand smoke constitutes a nuisance or disrupts your right to quiet enjoyment of the rental unit.

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 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.