Rent Coach: My landlord is threatening to keep my deposit if I smoke inside. Is that allowed?

Q. I'm about to rent an apartment, but the lease states that if I smoke inside, the landlord can keep my security deposit. Is that legal?

A. A landlord could include such a provision in a lease but would be ill-advised to do so, and it may not be enforceable.

First, a quick background on security deposits: Landlords are generally permitted to retain security deposits to compensate themselves for the damages they suffer at the hands of tenants. The amount of the deposit they refuse to return must be exactly equal to those damages, which could include both physical damage to the apartment or building that required repair (beyond normal wear and tear) or unpaid rent. 

The reason that a landlord cannot simply retain a security deposit as a result of a tenant’s smoking is that the landlord must demonstrate that the smoking caused damage that required remediation and that the cost of that remediation was equal to the entire security deposit.

Now, smoking can absolutely cause damage. For example, the walls and ceiling of the apartment may need to be cleaned with special chemicals and repainted, carpet may need to be replaced and drapes and blinds may need to be cleaned. 

According to a study conducted by UCLA and published in the American Journal of Public Health, the average cost of cleaning up an apartment after a habitual smoker vacates is $4,935.  That very well could account for an entire security deposit.

But the point is, the landlord must provide proof of their costs and that the efforts were actually necessary. The fact that someone smoked in the apartment a couple of times would almost certainly not be sufficient.

It’s also imprudent for a landlord to include a provision that states that the tenant will lose their deposit for smoking.  The risk is that a court might interpret such a provision as an agreement upon “liquidated damages.”  Provisions involving liquidated damages are used in contracts to define the amount of damages that a party must pay if something happens where it's difficult to figure out the cost of the damages.

The risk to the landlord is that if the smoking-related repair costs more than the deposit, a court may refuse to allow the landlord to seek additional reimbursement from the tenant. With the cost of cleanup approaching $5,000, this could be an expensive mistake.   

It’s best for landlords and tenants to agree in the lease as to the property’s smoking policy.  If it’s prohibited and a prospective tenant smokes, it may be best for both parties to steer clear of the transaction. 

If it’s permitted or the tenant smokes indoors in violation of their lease, the tenant should be aware that they may be held liable for the cleanup expenses if their smoking habit lingers in the apartment after they themselves depart.  Lastly, smoking in violation of a lease that prohibits it could lead to an eviction as well as responsibility for the cleanup.

Mike Akerly is a New York City real estate attorney, landlord, and real estate broker. He is also the publisher of the Greenwich Village blog VillageConfidential.     

Note: The information provided here is for informational purposes only. It should not be construed as legal advice and cannot substitute for the advice of a licensed professional applying their specialized knowledge to the particular circumstances of your case.

See more Rent Coach.