A Smoking Addendum is an additional document added to an existing lease or rental agreement. Once signed, this document is incorporated into the original agreement. The Landlord should consider one if the current lease or rental agreement is quiet about whether smoking is allowed on the Premises. Even if the lease or rental agreement has already been signed, a Landlord may still later ask Tenants to sign this document if they are particularly concerned about their Tenants using the listed substances.
As a reference, this form is known by other names:
- Addendum Prohibiting Smoking
- Lease Addendum Prohibiting Smoking
- Marijuana Addendum
When to Use a No Smoking Addendum
This form is commonly used when a Landlord’s original Lease or Rental Agreement failed to address the issue of smoking or the Landlord is concerned about the Tenant’s recent use of the Premises.
Here is a list of just a few reasons why a Landlord should ask a Tenant to sign an addendum prohibiting tobacco and cannabis:
- Newly renovated Premises
- Furnished apartment may get damaged
- Tenant only verbally promised to not smoke
- Fellow tenants in the building express concern
- State recently legalized marijuana
- State is considering marijuana ballot initiatives
- State allows medical and/or recreational use of marijuana
Landlords should make sure Tenants understand that there is a zero-tolerance policy towards using all forms of tobacco and marijuana if that is what the document states.
Consequences of Not Using a No Smoking Lease Clause
Without using this document, Tenants can take advantage of a lease or rental agreement that is silent about smoking or federally unlawful activity.
Here are just some of the possible preventable suffering an Addendum can prevent:
- Monetary Damage
- Legal expenses to evict a Tenant
- Costs to find a new Tenant
- Property Damage
- Replacement cost of furnishings
- Unexpected smoke damage in walls, floors, and ceilings
- Emotional Distress
- Managing an upset Tenant
- Complaints from neighbors
This document allows Landlords to clarify that marijuana includes any part of the cannabis plant, whether dried or in a living plant.
Most Common Situations to Use a No Smoking Clause
Landlords who rent Premises in one of the listed cities or states that have legalized marijuana should consider this form if they want to clarify whether their Tenants can or cannot smoke any cannabis products while living on the Premises.
The following cities have entirely legalized marijuana for both recreational and medicinal use:
- Keego Harbor, Michigan
- Portland, Maine
- South Portland, Maine
The following states have fully legalized the use of both recreational and medicinal marijuana:
- Alaska
- Colorado
- District of Columbia (D.C.)
- Oregon
- Washington
The following states allow only the use of medical marijuana:
- Arizona
- Georgia
- Hawaii
- Illinois
- Louisiana
- Michigan
- Montana
- New Hampshire
- New Jersey
- New Mexico
The following states have decriminalized the use of marijuana:
- California
- Connecticut
- Delaware
- Massachusetts
- Maryland
- Maine
- Minnesota
- Mississippi*
- North Carolina*
- Nebraska
- Nevada
- New York**
- Ohio
- Rhode Island
- Texas (only in Houston and Dallas)
- Vermont
* Possession of marijuana is still classified as a misdemeanor in this state.
** Use of marijuana cannot be in public view
Landlords may also want their Tenants to sign an addendum if they suspect tobacco or cannabis products have recently been used on the Premises and the Lease is currently silent on whether smoking is allowed.
Even if tenants have a medical marijuana card, tenants may not smoke on the rental premises if a landlord broadly prohibits drugs that fall under the federal Controlled Substances Act. In 2001, the U.S. Supreme Court held in Oakland Cannabis Buyers’ Cooperative that the federal law did not create a medical necessity exception for “seriously ill” patients.
What to Include in a Smoke-Free Addendum
A simple Lease Addendum that prohibits, restricts, or allows smoking should generally have at least the following:
- Who is allowed/not allowed to smoke, including both the Tenant and their guests
- What is allowed/not allowed to be on the Premises, including tobacco or marijuana in any form
- Where the prohibition, if any, applies, especially on the Premises and including common areas
- What are the consequences of violating the Addendum, including ending the Lease
- Why smoking, if disallowed of restricted, is considered a disturbance and nuisance to neighboring residents
- Whether the Tenant will lose their security deposit or be responsible for any damages
If the Landlord wants to be comprehensive, the Addendum should clarify that any extract from the cannabis plant in any distilled, purified, or edible form is strictly prohibited.
A Smoking Lease Addendum document will identify the following basic elements:
Original Lease or Rental Agreement: refer to the existing agreement which was created between Landlord and Tenant. The date and name of the Lease or Rental Agreement should be clearly stated.
Premises: confirm the address the Landlord has rented to the Tenant to make their place of residence and whether tobacco or marijuana usage is allowed in the premises or not.
Guests: clarify whether or not the policy applies to both the Tenant and their guests. Some Landlords may allow the Tenants to smoke, but choose to draw a line at allowing people they do not know to smoke in their house.
Liability: state that the Tenant will defend the Landlord if any injuries occur because Tenant violates the Addendum and smokes or uses any substances prohibited by the agreement.
Security Deposit: explain that the Tenant will lose their security deposit if any evidence of smoking of tobacco or cannabis, or any other illicit substances in any form are found in the leased or rented premises.
Signatures: both Landlord and Tenant should sign and date the Addendum.