Smoking, vaping, and using marijuana products are very personal decisions. For some, it is a lifestyle choice; for others, it is a medical one. However, in a community like an apartment building, smoking, vaping and cannabis use can impact more than just the user with secondhand smoke and unwanted smells.
What are your rights as a tenant and what should property owners be aware of as they navigate smoking policies in their community? Let’s explore what the law requires and the role that property owners or management companies play in this issue. 
What Tenants Should Know
Your rights as a Massachusetts tenant regarding smoking, vaping, and marijuana depend on two distinct angles: your right to consume and your right to be free from secondhand smoke.
Right to Be Free of Secondhand Smoke
If a tenant wants protection from secondhand smoke, Massachusetts tenant protection laws give legal leverage. Under the Massachusetts State Sanitary Code, tenants have the right to a safe and habitable home. If secondhand smoke is a problem, courts may require property owners to take steps to reduce or eliminate exposure.
Additionally, the Covenant of Quiet Enjoyment (M.G.L. c. 186, § 14) states that tenants have a statutory right to the peaceful and safe use of the rental space. Pervasive secondhand smoke that causes discomfort or health issues interferes with quiet enjoyment, rendering the landlord potentially liable for damages (up to 3 months’ rent) if they fail to address it. If a rental building advertises a “No Smoking” policy, the landlord is legally responsible for enforcing that rule against offending neighbors.
Right to Consume
There is no constitutional or legal right to smoke in a rental home. Landlords and property owners hold significant authority to set consumption rules on their property. Using state law (M.G.L. c. 94G), landlords retain the explicit right to ban the smoking or vaping of cannabis on their property.
However, under state law, landlords generally cannot ban tenants from consuming non-smoking forms of cannabis, such as edibles, unless it forces the landlord to break federal rules. The only exceptions are federally funded or subsidized housing (where federal marijuana bans apply). (Mass.gov) Landlords may also explicitly prohibit growing or cultivating cannabis plants inside the rental property, even though home growing is legal under state law.
What Property Owners Should Know
Under Massachusetts law (M.G.L. c. 94G, § 2), property owners have broad authority to prohibit the smoking, vaping, and cultivation of cannabis or tobacco across their entire premises, including individual units, balconies, and outdoor areas. Furthermore, state workplace safety regulations strictly ban smoking and vaping in indoor common areas like lobbies and stairwells whenever employees or contractors work on the property.
There are instances and situations that property owners can not prohibit; Massachusetts property owners cannot prohibit tenants from consuming non-smoked cannabis, such as edibles, oils, or tinctures, inside their private units. The only exception applies to properties governed by federal regulations, like HUD or Section 8 housing, where allowing any cannabis use could jeopardize federal funding or licensing.
Property owners also face liabilities and obligations, including investigating and enforcing rules against secondhand smoke drift, because failing to act can expose them to tenant lawsuits for up to three months’ rent plus legal fees. While landlords must provide reasonable accommodations for medical marijuana users, courts generally hold that transitioning to non-combustible forms like edibles fulfills this requirement without violating property smoking bans. However, for federally subsidized housing (such as HUD or Section 8), property owners must strictly enforce a total prohibition on all marijuana use and possession to comply with federal law.
Balancing tenants’ rights with the need for a smoke-free, comfortable environment is essential to maintaining a positive community. Property owners must clearly define their policies and enforce them consistently to meet legal obligations while protecting all residents. For expert guidance in drafting effective policies or navigating smoking-related concerns in your rental property, contact Thayer & Associates today.