Lease Clauses: Smoking/Drugs/Firearms

18 Replies

So I know how to add a no smoking clause to a lease however I have learned over the years that if its not in writing, you cant enforce it & my last tenants had firearms and were doing illegal drugs on the premises.

How can I add this to my lease? Here's what I have so far: No smoking of any substance is allowed on the premises. Tenant (s) shall not smoke, nor permit anyone to smoke, inside the property at any time. This includes smoking cigarettes, cigars, pipes or any other smoking device. Tenant is responsible for all damage caused by the smoking including, but not limited to, stains, burns, odors, and removal of debris.

TENANT(S) using, possessing or selling illegal drugs will be subject to possible eviction. No warning notice will be given and eviction may be assessed at the LANDLORD’S discretion

However, I dont know what language to write about the weapons... trust me I know people do whatever they want to do BUT it cant hurt to have it on the lease 

The right to bear arms is granted by the second amendment. I don't think you can prevent people from owning firearms and keeping them at your property. 

You say "It can't hurt to have it on the lease" but actually, it CAN hurt you to have clauses in your lease that are illegal and therefore unenforceable. In some leases, that can cause the ENTIRE thing to be void.

You don't say what state you are in, but you should read your state's landlord/tenant laws to make sure eviction for possessing illegal drugs is allowable in your state.

BiggerPockets has a set of state-specific Landlord Forms including a lease, that were written by attorneys to conform to each state's individual laws. You can find them at www.biggerpockets.com/llforms and they are also available as a perk of the Annual Pro membership.

https://arpola.org/can-say-no-guns-rental-property/

You actually can prohibit tenants from possessing firearms in your rental in certain states (TN).  There are also other states that specifically do not allow landlords to prohibit firearms.  It's a mixed bag.

I'd recommend against adding this clause to your lease even if it seems legal simply because it's generally unenforceable and you could potentially end up getting sued.  Beefing up your tenant screening process is a much more effective deterrent.

@Mindy Jensen Thank You for your reply! I am in NY - forgot to put that in.  Maybe I'll leave the firearm one out because I would hate for the lease to be voided because of one thing.  I just didnt think of that considering illegal weapons are well, Illegal! I am mostly concerned about the smoking & drugs.  I had a tenant growing marijuana in my backyard once and I didnt know how to handle it since it is still illegal here in NY. 

Here's my thoughts.  I think you have every right to ban smoking inside your property. 

I also think it's a good idea to have a policy/addendum on illegal drug activity at the property.  A couple thoughts about your proposed language though.  Not sure what you mean by "and eviction may be assessed".  That doesn't really make sense.  Also, you don't list what state you're from, but in most states a warning notice is required before proceeding with formal eviction.  It sounds as if you're trying to get the tenant to try to waive their legally required right to a notice with the language about "No warning notice will be given".  I doubt that's legal, but you should have an attorney review it to be sure. 

I'm not sure why you want to ban firearms or "weapons", but I think you'll have a tough time banning either.  People generally have a constitutional right to own firearms and I can't for the life of me imagine how you would ban all "weapons".  Would you prohibit them from having knives in their kitchen?  Baseball bats in their garage?  In the end, I think it would be unenforceable, so I'd probably just skip trying to do that altogether.  

It will depend on where in NY you are. The city is one thing and Western NY is totally different. I would put the smoking one in and then an "Illegal activities" clause in. This would cover drugs, felons with weapons, people who are not allowed to legally posses weapons, Discharge of weapons in an illegal manner on the property, fires in the yard that are against local ordinances, Keeping kidnapped children in the basement, running a chop shop out of the garage, human organ trafficking and the like. 

DISCLAIMER: refer to your local lawyer for accurate information, The above post is written by some dolt on the internet and following any of the advice may result in all sorts of bad stuff. 

Originally posted by @Mike Cumbie :

It will depend on where in NY you are. The city is one thing and Western NY is totally different. I would put the smoking one in and then an "Illegal activities" clause in. This would cover drugs, felons with weapons, people who are not allowed to legally posses weapons, Discharge of weapons in an illegal manner on the property, fires in the yard that are against local ordinances, Keeping kidnapped children in the basement, running a chop shop out of the garage, human organ trafficking and the like. 

DISCLAIMER: refer to your local lawyer for accurate information, The above post is written by some dolt on the internet and following any of the advice may result in all sorts of bad stuff. 

 Thank You @Mike Cumbie I am in Long Island - I dont think there's a law regarding firearms here at all.  In my first lease, I never wrote no smoking and just talked to the tenant about it.  Two years after living there, he started smoking in the house and said it wasnt on the original lease and he was right, it wasnt.  Mind you, that lease came from an attorneys' office so now I try to learn from he mistakes and add things as I see them.

Thanks for all the help! I think I'll leave the specific regarding firearms out since I am not sure of the laws on that here.

Originally posted by @Maria Marrero :

@Mindy Jensen Thank You for your reply! I am in NY - forgot to put that in.  Maybe I'll leave the firearm one out because I would hate for the lease to be voided because of one thing.  I just didnt think of that considering illegal weapons are well, Illegal! I am mostly concerned about the smoking & drugs.  I had a tenant growing marijuana in my backyard once and I didnt know how to handle it since it is still illegal here in NY. 

 Instead of banning them, add a clause stating that they will be stored and handled safely at all times, and at no point is the weapon allowed to be discharged in the unit unless it is for self defense. (I imagine a lawyer could word this better.

This way, if the tenant decides to shoot cans in the backyard, or has an acciedental discharge, you can address it.

@Andrew B.

"Instead of banning them, add a clause stating that they will be stored and handled safely at all times, and at no point is the weapon allowed to be discharged in the unit unless it is for self defense. (I imagine a lawyer could word this better.

This way, if the tenant decides to shoot cans in the backyard, or has an accidental discharge, you can address it."

So you want to add a clause in the lease requiring the tenant to follow state law as well as unenforceable clauses like "handled safely at all times".  I'm not the most experienced guy here but I know enough o know you should not puff your lease up with a bunch of fluff that you cannot regulate or enforce.  A simple "No illegal activities" covers all of it.

@Maria Marrero Unless your attorney specifically knows or practices real estate, tenant\landlord law I would not put much faith in his lease. The folks who operate and participate in this forum know a lot more about this subject than some family law or criminal defense attorney. "Illegal activities on premise are grounds for eviction" That covers a lot of ground.

Originally posted by @John N. :

@Andrew Boettcher

"Instead of banning them, add a clause stating that they will be stored and handled safely at all times, and at no point is the weapon allowed to be discharged in the unit unless it is for self defense. (I imagine a lawyer could word this better.

This way, if the tenant decides to shoot cans in the backyard, or has an accidental discharge, you can address it."

So you want to add a clause in the lease requiring the tenant to follow state law as well as unenforceable clauses like "handled safely at all times".  I'm not the most experienced guy here but I know enough o know you should not puff your lease up with a bunch of fluff that you cannot regulate or enforce.  A simple "No illegal activities" covers all of it.

That's exactly what I'm suggesting. If there is a specific reason for the fear, then the addition of a clause, even if its "fluff" may give the landlord a slight edge if there was an issue. If it does not, it has done no harm.

However, I do agree that a "No Illegal Activities" clause would cover the situation sufficiently. I believe that has already been suggested though.

@Andrew B.

My first lease I wrote was 17 pages plus addendums.  Trust me, I know fluff.  I reduced it to half that size but still covered the same legal point I just used better wording.  My "fluff" comment was regarding handing a new tenant a lease and the throughout the term of the lease you ignore/are unaware of/or forgive the fluff you are training your tenant that what you say is not the final law of the land.   Putting something like "handled safely at all times" would be like saying no food may be prepared in the kitchen unless proper sanitary practices are followed.  It's unenforceable and subjective.  It serves no purpose and wastes ink.

@Maria Marrero I would include vaping/e-cigarettes as part of no smoking. Last Monday I spend four hours wiping down walls in a bathroom covered with vaping residue. Tenant said he ran the fan when he vaped in there. That is the second time I have had the film covering walls. People who try to state vaping does no damage are misinformed. The greasy residue is impossible to paint. I am sure it harmless to your lungs, haha. 

I also ban candles. Candles will leave black film on your walls. I have also had wax in the carpet, which is very difficult to get out.

My lease also contains the very critical legal clause of, "If one clause in this lease is considered null and void, it does not affect the other clauses." That covers what @Mindy Jensen refers to if for some reason one clause is proven invalid, it protects the remainder of the lease. 

@Maria Marrero the only people who would follow that rule are people who don't own them already. So you're either expecting people with illegal guns to keep them outside off your property or wanting to cut your tenant pool by a significant percentage with zero upside.

Here's my clauses:

NO SMOKING/VAPING: Neither the LESSEE, guests, nor any other person shall be allowed to smoke, vape, or use e-cigarettes in or on the PREMISES, hereinafter referred to as SMOKING. Any violation shall be deemed a material violation of the Lease Agreement. LESSEE understands that any damage caused by SMOKING any substance will be considered damage. Damage includes but is not limited to: deodorizing carpet, waste removal, additional paint preparation, replacement of drapes, repair or replacement of carpet, countertops, or any other surface damaged due to burn marks and/or smoke damage. LESSEE agrees to pay to ionize the premises to remove any unwanted odors.

HAZARDOUS ITEMS: LESSEE shall not keep or have on the PREMISES any article or thing of a dangerous, inflammable, or explosive character that might unreasonably increase the danger of fire or that might be considered hazardous by any responsible insurance company.

Thank You all for the replies! I think I will add the vaping and e-cigs and then just leave the rest as 'hazardous'.  Its amazing how the lease the attorney sent me didnt include a lot of these clauses... My lease is 11 pages so far :) I dont want to make it super long but I also dont want to leave important things out - such as no smoking!

I hired a PM company once and I noticed that on their lease, they even included a cesspool clause in which tenants were the ones to clean out if need be... it was interesting.  My tenants refuse to sign their lease with that company