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Smoke-Free Provisions in Apartment Leases

Throughout Michigan, more and more owners of market-rate apartment buildings are choosing to make their properties smoke-free. This makes good business sense because: 

  • There is a preference by tenants for smoke-free facilities.
  • The rehab cost for a unit occupied by a non-smoker is much lower than the cost for a unit occupied by a smoker.
  •  About 9 percent of apartment fires are caused by smoking.
  • Allowing smoking in a multiunit residential building potentially puts the owner at risk for civil litigation by non-smokers under common law theories, the Americans with Disabilities Act and the Fair Housing Act.
  • Implementing a non-smoking policy can increase the re-sale value of a building.

It all sounds good, but for the owner of a multiunit residential building, several questions arise. How can the owner implement a non-smoking policy? What should the owner do regarding current tenants who smoke? What about a prospective tenant who is certified to use medical marijuana?

Making Your Building Smoke-Free

It's actually fairly easy to implement a non-smoking policy, though there are some legal issues to consider. You can make the public areas - such as the lobby, stairways, and halls - smoke-free right away, by posting signs and through written communications to tenants. You should revise your lease application and lease by inserting a non-smoking provision that covers both the public areas and private residential space. At renewal time, a smoking tenant will have to choose whether to comply with the non-smoking clause or seek accommodations elsewhere. Over time, your building should be entirely smoke-free.

Regarding marijuana use on your property, you are under no obligation to rent a unit to medical marijuana user. In 2011, the Michigan Attorney General issued Opinion No. 7261, stating that under current laws, property owners could prohibit the smoking of marijuana in their buildings. In 2015, a bill expressly allowing property owners to prohibit the smoking of marijuana in their buildings passed the Michigan Senate, but no action was taken in the Michigan House.

A lawyer experienced in real estate law can advise you about these and other matters.

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