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Smokers Have Hard Time in NYC Rental Market

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By Stephanie Rabiner, Esq. on May 25, 2012 6:02 AM

It's incredibly difficult for smokers to find a rental unit these days, even in large metropolitan areas like New York City. A quick Craigslist search by The New York Times only netted four units in all five boroughs.

As a result, many smokers have taken to hiding their habit. Some discretely violate their leases, while others just flat out lie. Should they have to do this? Can landlords discriminate against smokers, or does the smoking public have rights?

In New York City, and in most of the country, smokers have very little rights. The law tends to only prohibit discrimination based on race, ethnicity, sex, age, disability and religion. Some jurisdictions also add in sexual orientation and gender identity. Smokers are generally not considered a protected class.

Smokers also likely wouldn't fall under general provisions that prohibit discrimination based on any identifiable characteristic. This is because there are very good business reasons for landlords to discriminate against smokers.

Take Anthony Lolli, for example. A devastating fire broke out in a building he owned 13 years ago, according to The New York Times. As a result, every property owned by his brokerage firm gets a no-smoking, no-candle rider.

Besides fires, smoking causes interior damage that may require new paint and new carpets. It could also travel into a neighbor's unit, which any Manhattan real estate attorney will tell you is a real problem. Non-smoking tenants don't want the smell, and if they have a respiratory problem, they'll make a legal stink about it.

So while it's a bit unfortunate for some, it's highly likely that landlords can discriminate against smokers in your area.

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