Omar Bennett
Smoking in a leased property can lead to a breach of contract, which can have adverse consequences for both tenants and landlords. A breach of contract occurs when either party fails to meet the agreed-upon terms in a lease, and a material breach is a major failure that significantly impacts the lease agreement. In the context of smoking, a lease may include a non-smoking clause that prohibits smoking within the building or designated smoke-free areas. If a tenant smokes in violation of this clause, it is considered a breach of contract, even if the tenant is a non-smoker. The landlord's promotion of the building as a non-smoking community further strengthens this rule, emphasizing health, cost, and safety concerns. However, not every breach of a lease is considered material, and it is important to understand the specific terms of the lease and local laws to determine the severity of the breach.
| Characteristics | Values |
|---|---|
| Smoking in designated non-smoking areas | Breach of contract |
| No-smoking clause in the rental agreement | Breach of contract |
| Landlord advertises the building as a non-smoking community | Strengthens the rule |
| Landlord includes a no-smoking policy in the lease or rental agreement | Grounds for termination of tenancy or eviction |
| Tenant smokes marijuana | Grounds for termination of tenancy or eviction |
| Tenant smokes in the unit | Breach of contract |
| Tenant has a history of breaking the law | Grounds for eviction |
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What You'll Learn
Smoking in designated non-smoking areas
When it comes to smoking, landlords typically inform tenants of a no-smoking policy or smoking restrictions through a clause in their lease or rental agreement. This no-smoking clause usually applies to smoking of any sort, not just tobacco. If a tenant smokes in designated non-smoking areas, it is considered a breach of contract, regardless of whether the tenant is a non-smoker or not. The landlord's promotion of the building as a non-smoking community strengthens this rule, emphasizing health, cost, and safety concerns.
A material breach of a lease agreement occurs when there is a major failure to fulfill a key term, making it difficult or impossible for the other party to receive what was promised. In the context of smoking, a material breach would occur if a tenant's smoking habit substantially impacts the lease agreement, such as by affecting the habitability of the rental unit for other tenants due to secondhand smoke. This could result in legal consequences for the tenant, including eviction proceedings, legal fees, and loss of security deposits.
It is important to note that not every breach of a lease agreement is considered material. A minor or trivial breach may result in fewer legal consequences. For example, if a lease includes access to a pool and the landlord delays its construction, it may be considered a minor breach. However, if the landlord never builds the pool, it could be considered a material breach.
To address smoking in designated non-smoking areas, tenants should first notify the violating party of the issue, referencing specific lease terms. They can then provide written notice requesting corrective action within a reasonable timeframe. If the violating party refuses to comply, seeking legal advice and exploring legal options may be necessary.
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Failure to inform related parties of the no-smoking policy
Smoking in a designated non-smoking area is considered a breach of contract, even if the smoker is a non-smoker themselves. Landlords typically advertise the building as a non-smoking community, strengthening this rule. The lease agreement may also include an "illegal activity" clause, which, under federal law, includes the possession and use of marijuana.
Tenants don't have a universal right to smoke in their rentals. There is no law, either state or federal, that allows people to smoke whenever and wherever they want. However, bans on smoking are also not discriminatory. State and federal laws prohibit discrimination based on certain attributes, but being a smoker is not one of them.
A material breach of a lease occurs when there is a substantial nonperformance of a party's duties under the lease. A trivial breach, such as a slight deviation from the lease terms, is considered immaterial. A material breach deprives the injured party of a reasonably expected benefit from the lease, and they must be able to calculate the appropriate damage due to this deprivation.
In the context of smoking, a tenant must inform their related parties of the no-smoking policy. This includes family members, household members, and guests. Failure to do so could result in a material breach of the lease, as it violates the tenant's smoke-free obligations. Other residents of the property are third-party beneficiaries of this agreement provision, and they have the right to sue for an injunction to prohibit smoking or for damages. However, they cannot evict another resident. The landlord has the right but is not obligated to enforce the smoke-free obligations.
To avoid any issues, it is essential for tenants to be aware of and comply with the no-smoking policies in their lease agreements and to inform their related parties of these policies.
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Breach of duty to keep rental habitable
Smoking in a rental property can constitute a material breach of lease, but this depends on the specific terms of the lease and local laws. A material breach of lease occurs when there is a substantial nonperformance of a party's duties, resulting in the injured party being deprived of a reasonably expected benefit.
In the context of smoking, if a lease includes a clear no-smoking clause, and a tenant smokes within the building or designated non-smoking areas, this would likely be considered a breach of contract. The landlord's promotion of the building as a non-smoking community further strengthens this interpretation. However, it's important to note that not every breach of lease, even with a no-smoking clause, may rise to the level of a material breach. For example, some states may consider the smoking of marijuana for medical reasons as a minor violation, especially if it is legal under state law.
Now, turning to the specific topic of "Breach of duty to keep rental habitable". Landlords have a duty to maintain their rental properties in a habitable condition, even if the lease does not specifically require them to make repairs. This implied warranty of habitability, recognised by most jurisdictions, defines 'habitability' as substantial compliance with the local housing code. It typically covers the following:
- Landlords must keep the apartments and public areas in good repair, clean, and free of insects, pests, garbage, or other offensive materials.
- Landlords must ensure all electrical, plumbing, sanitary, heating, and ventilating systems are working.
- Landlords must ensure any appliances they provide, such as refrigerators and stoves, are in good and safe working order.
- Landlords must keep the rental property free of bed bugs and provide notice of the building's smoking policy.
- Landlords must comply with requirements related to lead paint, smoke detectors, carbon monoxide detectors, locks, and window bars.
- Landlords must protect tenants from reasonably predictable criminal harm, such as ensuring secure locks on doors.
If a landlord fails to maintain the rental property's habitability, tenants have certain rights and options. They can withhold rent until repairs are made, but they should provide written notice to the landlord first and keep proof of such notice. Additionally, tenants can make necessary repairs themselves and subtract the reasonable repair costs from their rent payment, but this should also be done cautiously and with proper documentation. If a landlord attempts to evict a tenant for complaining about housing code violations, tenants can sue the landlord for breach of the warranty of habitability.
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Eviction based on an illegal activity clause
Smoking is not a federally protected right, and there is no law that provides people with the freedom to smoke when and where they want. While smoking is not explicitly banned, state and federal laws prohibit discrimination based on certain attributes, such as age and national origin, but being a smoker is not one of them.
Landlords can include language in their leases that prohibits illegal activity on the rental premises. For example, if marijuana is illegal in the state, then smoking it would violate the terms of the lease. Even if a lease does not contain an "illegal activity" clause, it is unlikely that any judge would require a landlord to allow a tenant to break federal law by smoking marijuana.
However, whether a landlord will be able to evict a tenant for smoking marijuana based solely on the illegal activity clause depends on the circumstances. Many judges will hesitate to evict when the tenant doesn't have a history of breaking the law, and the illegal act is relatively minor, especially if marijuana is legal under state law.
If a landlord includes a no-smoking policy in the lease or rental agreement, they can end the tenancy or evict a tenant who smokes. This includes smoking marijuana for medical reasons. In addition, if a tenant smokes in a designated non-smoking area, it is considered a breach of contract, even if the tenant is a non-smoker.
If you believe you are facing an unfair eviction due to smoking, it is important to seek legal advice and understand your rights as a tenant. Consulting a lawyer who specializes in tenant rights or housing laws can help you gather evidence and determine if there are any legal grounds to contest the eviction.
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Anticipatory breach
Smoking in a non-smoking building constitutes a breach of contract. A lease may contain a no-smoking clause, which prohibits smoking in designated smoke-free areas. If a tenant smokes in these areas, they have breached the contract, even if they are a non-smoker. This is because the no-smoking clause applies to smoking of any sort, not just tobacco.
An anticipatory breach of a lease occurs when a tenant repudiates the lease in writing or verbally communicates that they will not be able to fulfil the terms of the contract. This can also be indicated by the tenant's actions, such as deserting or vacating the premises or removing their belongings, combined with their failure to pay rent when it is due.
In the context of smoking, an anticipatory breach could occur if a tenant who signed a lease with a no-smoking clause informs the landlord or property management that they intend to smoke or will be unable to abide by the no-smoking policy. This communication, whether written or verbal, would constitute an anticipatory breach of the lease.
Additionally, if a tenant starts smoking in a non-smoking building and refuses to stop despite warnings or enforcement of the no-smoking policy, their continued smoking could be considered an anticipatory breach. This is because their actions indicate that they do not intend to comply with the terms of the lease regarding smoking.
It is important to note that not all breaches of a lease are considered material breaches that warrant termination or legal action. A material breach typically involves substantial non-performance of a party's duties under the lease and results in the injured party being deprived of a reasonably expected benefit. In the case of smoking, if the tenant's actions or intentions indicate an anticipatory breach, the landlord would need to assess the severity of the breach and whether it justifies termination or legal remedies.
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Frequently asked questions
A material breach of lease is a major failure that significantly impacts the lease agreement. This occurs when one party does not fulfill a key term, making it difficult or impossible for the other party to receive what they were promised.
A material breach of lease smoking occurs when a tenant smokes in a designated non-smoking area, thus breaching the contract.
A non-smoking area is an area where smoking is prohibited. This includes areas such as designated smoke-free areas in a building and public housing.
If a tenant smokes in a non-smoking area, it is considered a breach of contract, and the landlord has the right to enforce the smoke-free obligations and restrictions outlined in the lease agreement.
The consequences of a material breach of lease smoking can vary depending on the specific circumstances and the laws in the state or city. The landlord may have the right to terminate the tenancy or evict the tenant, especially if the breach involves substantial non-performance of the tenant's duties under the lease. The landlord may also seek financial compensation for any damages caused by the tenant's smoking.
