Tenant Smoking with Oxygen?

Question

Hi all,

I have an inherited tenant in a unit which allows smoking in the apartment - they pay rent on time, cause no real problems, are generally "okay" overall.

The problem is that one of the two tenants is on disability and uses oxygen while the other one smokes. As far as I know, the person actively using the oxygen does not smoke, but I honestly can't say I'm 100% sure. Assuming the person on oxygen does not smoke, is there a reasonable justification for me prohibiting smoking inside the apartment?

Don't get me wrong, I know how dumb of a decision it is - I'm mostly concerned about the potential liability if something were to go wrong and a fire were to start. This unit is the top floor of a duplex, so if something were to happen it could potentially affect another unit.

If it makes a difference, these tenants have been in the same unit for 4 years with no incident to this point.

Have any of you dealt with this situation? If so, how did you approach the topic? I'd rather not have this somehow turn into a discriminatory issue against someone with a disability, so I have a feeling it'll be a touchy subject.

Thanks!

Roy N. · Answer

We have a non-smoking policy across all our properties.  When we acquire a building where smoking has been permitted, we issue a sunset (usually 12-months) for the tenants to quit smoking in/on the property or move.

Bryan N. · Answer

Account Closed

Many many years ago I worked in an expensive retirement home.  We had residents that chain smoked three packs a day, indoors, while hooked to an oxygen tank.  We never had an incident.  I did get in trouble several times for buying their smokes for them.  The family's that NEVER visited didn't like it.  I felt differently.  These people were in their late 80's or 90's and smoked their whole life.  Let them smoke it up till the end!!!!!

James DeRoest · Answer

Should you be concerned - yes-no-maybe. Choose whichever one suits you.

The problem is that you can be sued for anything and held liable for anything. That's how law works. If your wife falls off her bike you can sue the company that supplied the road signs, you won't get very far though, but there is nothing stopping you trying.

So if something bad did happen, in order of richest people involved, where do you stand? If you have nothing and the property is mortgaged, then you're fine.

But if you are worth something, then you become a bigger target and the risk to yourself dramatically increases.

Personally speaking, I'd be giving notice that the lease won't be renewed regardless of the person stopping smoking (I simply won't believe them). Handily smokers are not protected classes in Fair Housing.

Again, personally speaking, if some idiot wants to light cigarettes near an oxygen tank they can blow themselves up somewhere else and in someone elses property.

Rob Beland · Answer

I had a personal experience with this exact issue Account Closeda few years ago. A property my family owns was across the street from where I live and a tenant on the third floor was on oxygen and smoked. Long story short her tank exploded as a result of her smoking and the house almost burned down. The fire was contained and there were only two of six units destroyed but it could have been a lot worse. I wouldn't take this lightly. I don't know about eviction laws in your state but I would try and prohibit smoking or evict the tenant if they are smoking while on oxygen.

Account Closed · Answer

Thanks for the thoughts - I can probably get to a point where I'm personally comfortable with it, especially since they've been there without incident for a few years.

From an insurance/liability perspective, should I be concerned? I suppose I can talk to my insurance agent, but I'm not sure if allowing smoking with oxygen nearby would be considered negligence or otherwise invalidate coverage in the event of a fire.

Steve Babiak · Answer

If you are worried about the smoking being a fire hazard, require the tenant to get renter's insurance.

If you think you want a non-smoking environment, then look at what the local Housing Authority uses for their no smoking lease addendum / policy.

And @Matt Devincenzo, a smoke free environment makes things safer and better for the OTHER tenants in the multi-family building; you know, there's this thing called "secondhand smoke" ...

As to people using oxygen and smoking themselves - I have seen that too often, so it wouldn't surprise me that the oxygen user is also a smoker.

Brandon Hicks · Answer

My advice?

You cant really control the way people live. If you're ok with indoor smoking then don't worry about.

Raise the rent and buy some more properties!

Money....focus on the money!

Randy E. · Answer

Many years ago, I had a tenant with an oxygen tank who smoked, and her boyfriend also smoked.  The first time I saw her smoking, it really surprised me.  After a while, I didn't think about it much.  Her life, her decision.  They paid the rent on time all the time, kept the place in great condition, and never complained about anything.  I was happy to have them as tenants.

I understand your concern about having a heat source around an oxygen tank.  If it really bothers you, maybe you can find a reason in your lease to evict them.  However, if they're paying on time and are generally good tenants, and if the unit is not a non-smoking unit, I wouldn't evict.

But if you want to, and you can find something in your lease to support your desire to evict, I think you should go for it.  It's your property and you can manage it however you see fit, within the boundaries of the law.

Matt Devincenzo · Answer

I wouldn't worry about it, assuming you're ok in the general sense with the smoking inside. There's really no greater risk of a fire with a normal indoor smoker vs the one with the tenant on oxygen in it.

Now if you want to go with a no smoking policy then do it, but I wouldn't justify it (to yourself let alone them) that you're in some way making things safer/better. And when you do those tenants will move, or lie about smoking inside and then they'll force your hand to evict on breach of lease. People that smoke inside specifically want a place they can smoke inside so taking that away takes away their desire to be there.

And having dealt with an indoor smoker rehab as my first I can say you WILL be in for some work/expense to get that place cleaned up after they leave.

Ralph Pena · Answer

this sounds a little tough of a call. I've never personally dealt with this.  But if you want to make your property a smoke free environment best to start asap. Bcuz you'll have to give notice with dates when rules will take effect.  I mean there good people but they can be replaced,  and you don't want them setting a smoking trend for your current and future customers.  Just bcuz they're careful doesn't mean the next residents will be.

Tenant Smoking with Oxygen?

Most Popular Reply