HUD Legal Counsel Opinion: Landlords
are free to make apartments totally smoke-free
Pursuant to a request from the Smoke-Free Environments Law Project
(SFELP), the Chief Counsel of the Housing & Urban Development
(HUD) field office in Detroit issued an opinion on July 18, 2003
in which she stated that: "Currently, there is no HUD policy,
by statute, regulation, handbook or
otherwise that restricts landlords from adopting a prohibition of
smoking in common areas or in individual units." The opinion
goes on to state that there is nothing in federal law, including
the federal Fair Housing Act (see SFELP analysis of the FHA as noted
below), or in Michigan law (see Michigan
AG Opinion as noted below) which prevents a landlord from making
some or all of his/her apartment units smoke-free.
The opinion states: "Similar to Michigan law, federal law
does not prohibit the separation of smoking and non-smoking tenants
in privately owned apartment complexes and in fact, does not prohibit
a private owner of an apartment complex from refusing to rent to
smokers." The only caveats to
this policy which the opinion lists are: 1) if the apartment owner
wishes to make the policy a condition of the lease, HUD approval
is necessary to the extent that the owner is bound to utilize HUD's
model lease; and 2) "if owners seek to make their complexes
smoke-free they must take caution to grandfather in those smoking
residents currently residing at the complex."
This opinion is almost certainly applicable to virtually all states,
since,
as in Michigan, it is almost certain that no state has laws which
make
smokers a "protected class." Persons in states other than
Michigan will
want to check laws of the applicable state, and also check on whether
there
may already be a court decision(s) or an Attorney General opinion
which
states that landlords have the right to make some or all apartment
units
smoke-free.
We are delighted to have been able to obtain this opinion from
HUD after
many months of work with them. We sought this opinion specifically
because
some landlords wanted to adopt total smoke-free policies, but they
had some
HUD-assisted units and therefore they wanted assurance that HUD
would
support them if a potential renter challenged their right to require
no
smoking in the entire apartment building, including inside apartments.
In
this opinion, the HUD legal counsel makes it clear that it is not
discriminatory to require no smoking in apartment units.
We have scanned the opinion onto the SFELP web site so that you
can easily
access it. To access this HUD opinion, as well as the SFELP FHA
analysis,
the Michigan AG Opinion, and related information, including other
HUD
decisions which are consistent with this July 18th opinion, go to
the
section of the SFELP site titled "Environmental Tobacco
Smoke & Apartments
and Condominiums" at http://www.tcsg.org/sfelp/apartment.htm.
Or, to
directly access page 1 of the HUD opinion, go to
http://www.tcsg.org/images/HUD_01.jpg.
To directly access page 2 of the HUD
opinion, go to http://www.tcsg.org/images/HUD_02.jpg.
This material provided by;
Jim Bergman, J.D.
Smoke-Free Environments Law Project
The Center for Social Gerontology
Ann Arbor, Michigan
jbergman@tcsg.org
http://www.tcsg.org/sfelp/home.htm
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