Can Landlords Include Smoke-Free Provisions in Residential Lease Agreements?
Yes, landlords are allowed to include smoke-free provisions in residential lease agreements, but the provisions do not have a significant chance of being enforceable in a court of law.¹
The Ohio Department of Health (the “Department”) has officially released literature encouraging landlords to include smoke-free provisions in lease agreements. The Department believes that including these provisions will aid in preventing fires and eliminating the effects of secondhand smoke on other tenants.² Nonetheless, the Baldwin’s Ohio Handbook regarding Landlord Tenant law provides doubt that a smoke-free provision will be enforceable in a court of law.³
Section 2:20 of Baldwin’s Ohio Handbook (2023-2024 ed.) emphasized that smoking cigarettes or engaging in drug use at a private residence is considered “private behavior.” Accordingly, courts will likely not enforce prohibitions against tenants engaging in private behavior.⁴ Notwithstanding these concerns, § 2:20 discusses limited scenarios where courts could justify enforcement of smoke-free provisions.⁵ These examples include the justification of safety hazards, like a tenant who has a history of smoking in bed, or the possession of illegal substances.⁶ Nonetheless, the use of this justification does not guarantee a favorable outcome for the enforcement of smoke-free provisions in a court of law.
Ohioans recently voted to make recreational marijuana legal. Therefore, marijuana will no longer be considered a restricted or illegal substance. R.C. 3780.33 states that landlords may “prohibit the consumption of cannabis,” so long as it is included in applicable lease agreements. Because marijuana was recently made legal in Ohio, not much case law exists regarding a tenant’s use of marijuana in his/her private residence. Additionally, not much case law exists regarding enforcement of smoke-free provisions in lease agreements. The lack of case law is probably due to the landlords’ ability to remedy the damage outside of court (i.e. deduction or forfeiture of the tenant’s security deposit).
Conclusively, landlords can include smoke-free provisions in lease agreements but will likely have a difficult time enforcing the provision in court. Consult an attorney for further information.
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¹ See R.C. 5321.06; Frederic White, Baldwin’s Ohio Handbook Series: Ohio Landlord Tenant Law, Section 2:5: Permissible terms and conditions (2023-2024 Ed.) (“[A] lease/rental agreement may contain any terms and conditions that are not inconsistent with or prohibited by the statute or any other rule of law.”)
² Dept. of Health, Bureau of Healthy Ohio, Creating Healthy Communities Program, Going Smoke Free: A Guide for Landlords, https://odh.ohio.gov/wps/wcm/connect/gov/0e8656db-1f11-42c9-96ad-c7dbb51e6aed/Smoke-Free-Guide-Landlords.pdf?MOD=AJPERES&CONVERT_TO=url&CACHEID=ROOTWORKSPACE.Z18_M1HGGIK0N0JO00QO9DDDDM3000-0e8656db-1f11-42c9-96ad-c7dbb51e6aed-mDFninH#:~:text=Since%20there%20is%20no%20protected,state%20law%20and%20notice%20requirements (accessed January 18, 2024).
³ Frederic White, Baldwin’s Ohio Handbook Series: Ohio Landlord Tenant Law, Section 2:20: Enforceability of other terms – Smoking, drug use (2023-2024 Ed.).
⁴ Id.
⁵ Id.
⁶ Id.
Further Reading
