Can My Landlord Prohibit Smoking If the Lease Doesn't?

My rental agreement doesn’t have a no-smoking policy, but my landlord wants to evict me for smoking. What are my rights?

Question

I'm subletting an apartment. I smoke, and I often have friends over who smoke, too. I just received notice that the owner wants to evict me for smoking—but the tenant whom I rent from never mentioned it wasn’t allowed. I checked the tenant’s lease and my sublease agreement, and neither has a no-smoking rule. I pay rent on time. What are my rights?

Answer

Landlords have the right to prohibit or restrict smoking in their rental properties. Most of the time, a no-smoking policy is part of the lease or rental agreement. When tenants (or subtenants) sign a lease or rental agreement, they agree to be bound by its terms. Tenants or subtenants who violate their lease or rental agreement risk early termination of their tenancy or even eviction.

However, landlords cannot create new rules mid-tenancy unless the tenant agrees to the change in writing. A landlord cannot add a new policy into a fixed-term lease before the lease expires. When a month-to-month rental agreement is in place, a landlord can only make a change after giving the tenant proper notice (30 days before the new policy begins in most states) in writing.

Because you’re a subtenant of a tenant with a lease, you must abide by the terms and conditions of the tenant's lease—as well as the terms of your sublease agreement. For example, a no-pets clause in the tenant’s lease also applies to you. Likewise, the rule that landlords can’t change the rules mid-lease apply to you—meaning the landlord can’t insist that you stop smoking, because the tenant’s lease doesn’t have an anti-smoking clause.

However, the lease isn’t the only agreement you must abide by. The tenant from whom you rent could change the month-to-month sublease agreement to add a no-smoking rule. So long as the tenant follows all the applicable laws regarding changes to rental agreements, you’ll have whatever amount of notice time your state requires begin (again, usually 30 days) to decide if you want to move out or comply with the new rule.

In the meantime, you could send the landlord a letter explaining that because neither the lease nor the sublease agreement contains a no-smoking policy, your smoking is not grounds for early termination or eviction. Send the letter by certified mail so you have proof the landlord received it, and keep a copy of the letter for yourself. If the landlord proceeds with eviction anyway, consider consulting a local landlord-tenant attorney for further advice.

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