Professional apartment community owners and management companies know we have to respond to reasonable accommodation requests in order to ensure our compliance with the federal Fair Housing Act as well as various state laws. Accommodation requests come in all shapes and sizes. And we must respond to all of them.
I recently had two separate cases involving requests to live in a non-smoking building. In other words, the residents requested as an accommodation for their allergy or sensitivity to second hand smoke that we prohibit smoking in and around their apartments. These requests raise challenging issues because if we grant the request we are potentially infringing on the rights of other residents and guests to smoke in their personal homes. While we all may have different views on smoking, it is absolutely legal for adults to smoke – especially in their own living room.
Federal and state fair housing and disability laws, of course, are designed to ensure that people with disabilities have an equal opportunity to access and enjoy their homes. Owners and property management companies can be required to make changes to the rules or policies of the community as a reasonable accommodation to a disability. Easy examples include requests to waive a no-pet policy to assist with a service animal or to attach grab bars in a bathroom. It is just not practical to declare an entire building “non-smoking” and I am aware of no requirement that management make such a change. That being said, here are a few ways to respond to this request:
• Management could potentially prohibit smoking in the common areas of the community.
• Management could offer to transfer the resident to a vacant unit in the complex, away from the drifting smoke. To be sure, management could not guarantee that a future resident might not smoke. Also, there would likely be some negotiation concerning how the moving/transfer expenses would be taken care of. Management could not, of course, evict another resident just to create a vacancy.
• Management could offer to permit the resident to break his or her lease without penalty in order to find another apartment community in which smoke does not appear to be a problem.
• Management could offer to put additional weather stripping or caulk around the windows and doors. Alternatively, management could offer a fan or air purifier.
I have not seen any court decision requiring management to declare that residents cannot smoke in their own homes. I am, however, aware of efforts by residents to make these no smoking requests. Management must appropriately respond to protect itself and all of our residents — even those who smoke.
Just A Thought.