House & Apartment

The following question was originally submitted to John Roska, a lawyer Someone who represents clients in courts or who gives legal advice and writer for the weekly column "The Law Q&A" in the Champaign News Gazette. The article has been updated to include changes in the law and additional information.

Question

My landlord An owner of property who rents it out to a tenant says the complex I live in will become “no smoking” on January 1, so that I’ll no longer be able to smoke inside my apartment. I’ve lived here for years. Can they do that?

Answer

There’s no right to smoke, so it’s legal for landlords to prohibit smoking. And they can adopt a no-smoking policy after you move in if they do it right. They’ll either have to wait till your lease renews or—in subsidized housing or mobile home parks—give you enough notice.

Leases are contracts, which can’t be changed unilaterally. A landlord, for example, has no more right to increase the rent in the middle of a lease than you have to decrease it.

It’s the same with trying to change any other lease provision mid-stream. If both parties don’t agree to the change, one side can’t impose the change on the other.

A no-smoking policy would be just like a no pets policy. To be enforceable, it must be in the lease. If it’s not in your lease now, it can’t be added until the lease is renewed.

Subsidized housing has different rules. House rules can be customized locally to supplement the standard HUD lease each tenant A person who rents a space signs. The HUD regulations allow rules to be amended upon 30 days’ notice.

That would permit a landlord in subsidized housing to adopt a no-smoking rule by January 1 by giving 30 days written notice.

Similarly, if you live in a mobile home in a mobile home park, rules and regulations can be changed with 30 days' notice if the safety and welfare of tenants are at stake. Therefore, the mobile home park owner could likely change a smoking policy in the home or park with 30 days written notice. 

But if you live in regular housing, not subject to federal regulations, the landlord will have to wait until your next lease renewal to add a no smoking policy.

Then, as at any lease renewal, your options are to sign or move somewhere else. It’s a stark take-it-or-leave-it choice.

Month-to-month leases renew every month, so they can be changed more frequently than longer-term leases. Changing a month-to-month lease requires 30 days’ advance written notice.

That notice must be given to you at least 30 days before your next rent payment is due so you have a full rent cycle to decide whether to stay or go.

There are three ways you could have a month-to-month lease.

First, all oral leases are month-to-month. If you never signed a written lease, you have a month-to-month oral lease. As a practical matter, though, a no-smoking policy requires a written lease.

Second, some written leases are month-to-month. Most landlords prefer one-year leases but, on occasion, will go written month-to-month.

The third way there can be a month-to-month lease is after a written lease expires. Then, it's possible, but not automatic. It depends on what the landlord wanted the new "holdover tenancy" to be: month-to-month, or a renewal of the original lease term. When they don't make a clear choice, things can get murky.

But if your written lease is somehow month-to-month, the landlord could adopt a no-smoking policy by giving you 30 days' written notice.

Bottom line: Although the procedures may vary, a landlord who follows them correctly can require tenants not to smoke at the property.