How Allowing Smoking in Apartments Can Lead to a Fair Housing Violation

A few years ago, I was amused to learn that playing the violin registered as steps on my Fitbit, sometimes adding up to thousands of “steps” in a single practice period. I didn’t even think of counting violin playing as my daily exercise, but then I thought again.

Playing the violin requires a strong back and core. After all, holding one’s arms in the air for extended periods is hardly a natural position. Other instruments also require good physical conditioning. For instance, it requires strong lung capacity to play a wind instrument, especially the larger brass instruments which require the musician to force air through yards of metal tubing.

With lung capacity being so important, not surprisingly, smoking is anathema to being a wind player (although some wind players do smoke). In 2002, the local musicians’ union in New York City recognized the importance of lung capacity to musicians when it supported New York’s smoke-free workplace law.

The union pointed out that secondhand smoke makes it difficult for musicians to perform in bars and clubs. The union also noted that smoke and fog used for special effects in Broadway shows caused respiratory conditions in pit musicians, who might be exposed to those irritants a hundred or more times in a year.

Since then, many major cities have passed laws prohibiting smoking in public areas. However, smoking still remains a challenge for musicians who perform in smoke-filled clubs in cities lacking those laws.

But even if smokers can’t smoke in public places, they can smoke in the privacy of their homes. Or can they?

Some apartment complexes have adopted smoke-free policies, citing health issues. However, savvy property owners also see economic benefits to going smoke-free. Fires are less likely when there are no smokers in the building. Insurance costs may be lower, as a result. Plus, it costs more to turn over an apartment where the tenant has smoked.

Even in buildings that are not smoke-free, tenants who do not smoke sometimes may have rights to a smoke-free environment. For example, HUD recently pursued a Fair Housing Act action against a landlord who refused a tenant’s request to move to a different unit to avoid secondhand smoke from a neighbor.

Fair Housing Act

The Fair Housing Act (FHA) was adopted more than 50 years ago to prohibit discrimination in housing. Although at first, it only covered discrimination based upon race, color, religion, and national origin, additional protected groups have since been added. Today, the FHA also prohibits discrimination based upon sex, disability, and familial status.


For individuals with disabilities, the FHA requires that a landlord provide reasonable accommodations to enable individuals with disabilities to reside at the landlord’s property. This might include assigning a handicapped parking space to an individual with impaired mobility, allowing assistance animals, and adjusting a tenant’s rent payment date to accommodate the individual’s monthly disability payment schedule.

If a disability is not obvious, a landlord may ask for information about the disability from the tenant. However, detailed probing into a tenant’s medical records usually is neither required nor permitted.

Once the tenant’s disability status and needs are determined, the landlord must promptly accommodate them to the extent reasonable. Although landlords usually aren’t required to suffer an undue financial or administrative burden, delay in providing reasonable accommodations can violate the FHA.

The Tenant’s Claim

The recent HUD action involved a San Diego-area property management company, Property West Residential (PWR), which leased an apartment at Meadow Woods at Alpine (Meadow Woods) to a family whose child had a respiratory disability (Claimants). Meadow Woods did not prohibit smoking in apartments. And, the Claimants lived near to the apartment of a heavy smoker.

When the mother requested to be moved to an apartment not near to a smoking, PWR denied the requests. PWR apparently claimed that the Claimant was asking for “special treatment” because of claim that secondhand smoke exacerbated her son’s respiratory condition. In response, Claimants filed a Fair Housing Complaint with HUD.

Through HUD’s conciliation program, PWR agreed to pay the mother $5,000 and to forgive $5,560.47, PWR claimed it was owed. Meadow Woods’ property managers will undergo fair housing training, and PWR agreed not to violate the FHA.

Guidelines for Landlords

From the limited information HUD provided, it sounds like PWR did several things wrong in managing Claimants’ request. Multifamily landlords should take these actions to minimize the likelihood of committing (or being accused of committing) a fair housing violation:

  • Know the Fair Housing Laws. In addition to the FHA, many state and local governments have fair housing laws, which can cover categories not mentioned in the FHA.

  • Establish Written Fair Housing and Tenant Screening and Complaint Policies and Procedures and Follow Them. Following written policies not only serve as a reference to employees when issues arise but also help to prevent inadvertent inconsistent treatment. Establish and use standard forms where possible to prevent inconsistent treatment.

  • Train Employees About the Fair Housing Laws, Policies, and Procedures. Conduct formal training for new employees. Also conduct regular training on Fair Housing to assure employees’ knowledge is up-to-date. Training about unconscious bias and what language and words may be offensive to protected groups is an important part of fair housing training.

  • Be Consistent. Give the same information to all prospective tenants. Inconsistent treatment can result in treating individuals in protected classes less favorably, even if no discrimination is intended. Don’t make exceptions to written policies or provide extra benefits to anyone unless exceptions are offered to everyone on the same terms.

  • Regularly Audit Your Marketing Materials and Rental Office. Be sure your brochures and ads include all required fair housing notices. Also, regularly review your property advertisements and brochures to assure they do not reflect unconscious bias, are culturally sensitive, and embrace diversity. Post required fair housing notices in your rental office and in other required locations.

  • Conduct an ADA Accessibility Audit. Have a professional audit your property for ADA compliance, and make changes where feasible. Even if your property is “grandfathered” and need not comply with new ADA requirements, making your property accessible and welcoming to all is a good business practice.

  • Communicate. A “no” answer given without an explanation can look arbitrary and be viewed as unlawful discrimination. If you must turn down a prospective tenant due to credit or other objective rent criteria or must reject a tenant request, explain why and provide an opportunity for the tenant to address the situation.

  • Keep Written Records. Document requests and decisions in writing. This not only provides a valuable record of decisions and the reasons they were made, but it also can make employees stop and think more critically about decisions before making them.

Landlords should make fair housing a priority. Not only is it the law but fair housing claims and expensive to defend and aren’t good for business. Plus, fair housing is not only about equality, but also about hospitality, and creating a welcoming environment for all. Multifamily housing should be a service industry which provides not only shelter but a place a diverse population of tenants can call home.


© 2019 by Elizabeth A. Whitman

Any references clients and their legal situations have been modified to protect client confidentiality

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