Can a Landlord Prohibit E-Cigarettes in a Multi-Tenant Building?

Question: I’m the landlord of a 10 unit residential building in Minneapolis. One of my tenants sent me a letter complaining that the tenant in the unit below has started vaping (she saw him “lighting up” on his way into his apartment). She wants me to tell him he can’t use e-cigarettes in his apartment. I’m inclined to ignore her but I’m worried that I might get fined. Does the other tenant have the right to vape in his own place?

Answer: Vaping, like smoking, is not an explicit legal right, but to conclude that you can safely impose a ban on e-cigarettes would be hasty.

What are E-cigarettes?

“E-cigarette” is a popular term for any of the personal vaporizers on the market that deliver a vapor of heated liquid nicotine, which the user inhales. These devices do not contain or burn tobacco and the vapor does not exhale smoke, but does exhale vapor. For more information about what is known about the safety of such devices, see our article “E-cigarettes: Safe or Not?” Compared to traditional tobacco products, e-cigarettes present a lower risk of second-hand ingestion of certain known carcinogens (because there is no tobacco, and thus, no tar and other tobacco-derived byproducts). However, there may be some risk of ingesting nicotine from second-hand vapor.

A Right to Vape in Residential Rental Settings?

As with most landlord/tenant matters, state law and local ordinances are the places to look when it comes to asking whether you are subject to any laws that either guarantee tenants a smoke-free living environment, or restrict landlords’ ability to impose restrictions. Neither the state legislature nor Minneapolis lawmakers have passed laws or ordinances establishing an apartment dweller’s right to smoke or vape, but that does not necessarily mean that a landlord can prohibit either activity inside a person’s rented apartment.

Under the Minnesota Clean Indoor Air Act, you as the landlord must maintain smoke-free common areas in your building. This means that you must prohibit traditional tobacco smoking in indoor laundry rooms, lobbies and entrances, and other areas accessed by all tenants and make sure that tenants and guests abide by the rule. Smoking outdoors is not prohibited and a tenant is not prohibited from smoking in his or her own apartment.

But, according to the Minnesota Department of Health, the Act does not regulate vaping. So, you are not required to ensure that tenants and guests do not vape even in common areas. Bottom line: your vaping tenant is allowed to use e-cigarettes anywhere in your building under state and local law. But, this is not quite the end of the inquiry, as you’ll see shortly.

Tenants’ Rights to a Pleasant and Healthy Living Environment

Although the complaining tenant cannot point to a law or ordinance that prohibits vaping (let alone smoking tobacco) in individual units in multi-family rentals, she may have another legal avenue to accomplish her goal. All tenants are entitled to the “quiet enjoyment” of their rentals, which includes being free of excessive noise, interference, illegal activities, obnoxious activities, and – you guessed it – smells. Tenants have successfully invoked this right when objecting to constant and heavy BBQ smoke entering their windows nightly from a downstairs neighbor’s grill, or to a neighbor’s loud music at all hours of the day and night, and to the presence of tobacco smoke. When landlords get such complaints, they must evaluate the seriousness of the situation and direct the other tenant to cease the activity if they find that the interference is substantial. Not doing so gives the complaining tenant a legal excuse to break a lease, with no obligation for future rent. The complaining tenant normally does not have other legal recourse, however.

Your tenant may also approach the problem as a violation of her right to a “fit and habitable” living situation. You (and all landlords except those in Arkansas) must maintain fit and livable premises, which involves the absence of vermin, watertight walls and roofs, working plumbing, and may well include the absence of second-hand smoke or vapor. Here, unlike the “covenant of quiet enjoyment” theory explained above, the tenant has more than one way to react if the condition makes the rental unhealthy and you fail to address it. In addition to breaking her lease with impunity, she may (under Minnesota state law) withhold the rent until you act. Again, because vaping in one’s apartment is not a protected tenant right, you’d be on safe ground if you instituted a rule at your building that it will be vape-free. (Except for new tenancies, such a rule would have to be instituted gradually for existing tenants, at lease-renewal time, because you can’t unilaterally change an important rental term mid-lease.)

See a Lawyer

This is a tricky issue, so you would be wise to contact a lawyer experienced in landlord/tenant law to determine what you have to do and what you can do in response to your tenant’s complaint.

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