ASH's Smoking in
Condos and Apartment
Buildings Page
This page tells nonsmokers
how
to deal with problems of smoking in condominiums and apartment
buildings.
An increasing number of people have complained about tobacco smoke
from
neighbors, seeping into apartments in condominiums and apartment
buildings
and causing annoyance, irritation, and sometimes even illness.
Using legal theories such as nuisance, breach of warranty of
habitability,
breach of the covenant of quiet enjoyment, negligence, battery,
intentional
infliction of emotional distress, trespass and constructive eviction,
nonsmokers
have generally -- but not always -- prevailed.
Although ASH cannot provide individual legal advice, and although
the
law varies from jurisdiction to jurisdiction, the purpose of this
document
is to provide some general suggestions for dealing with this problem.
Please
read the entire document, and consider all the different suggestions.
1) EXAMINE YOUR LEASE OR CONDOMINIUM AGREEMENT
Most such documents contain covenants, conditions, or terms
prohibiting
persons living in a building from engaging in activities -- even within
their own apartment -- which unreasonably interfere with another tenant
or owner's enjoyment of his or her apartment. Playing music too loudly,
having late-night parties, or cooking foods which generate very
unpleasant
odors are common examples of such activities.
Smoking may be another such prohibited activity, particularly where
it can be shown that the smoke is being carried by the ventilating
system,
or by other means, into the apartment of another person who finds it
objectionable.
In such situations the matter should be brought to the attention of the
landlord or condominium management as what lawyers call a "breach of
the
covenant of quiet enjoyment."
2) KNOW, AND TELL OTHERS, ABOUT THE HEALTH DANGERS
People who might not otherwise be concerned about tobacco smoke may
view it quite differently if you can demonstrate to them that it causes
lung cancer, heart disease and other illnesses in nonsmokers, and that
it causes thousands of deaths among nonsmokers each year. If you do not
already have this information, click the following links to view some
of it on ASH's website:
Environmental Tobacco Smoke (ETS)
and Second Hand Smoke Links
Tobacco
Scam: Secondhand Smoke Fact Sheet
Dangers to Nonsmokers
Government Report on Secondhand
Smoke
Other Secondhand Smoke Links
Once you have such information, you can provide copies of neighbors,
post copies on bulletin boards, slip it under apartment doors or in
mail
boxes (to the extent permitted), and perhaps even have it printed in a
condo or apartment newsletter or flyer.
3) OBTAIN MEDICAL DOCUMENTATION IF POSSIBLE
If you, (or someone in your apartment) has asthma, emphysema,
sinusitis,
hay fever, allergies, pulmonary or cardiac disease, or other conditions
which make you unusually sensitive to tobacco smoke, you can make your
case stronger by obtaining a letter to that effect from a physician.
A copy of the physician's letter can then be sent by CERTIFIED MAIL,
RECEIPT REQUESTED to the landlord or condominium management -- and
possibly
to the persons who are smoking -- to put them on legal notice of your
condition.
Even if you do not have a recognized medical condition like
emphysema,
you may still be able to obtain such a letter by demonstrating to a
physician
that you suffer specific problems (such as headache or sore throat)
after
exposure to tobacco smoke.
4) SEEK OUT OTHER NONSMOKERS FOR SUPPORT
"United we stand, divided we fall" goes the old saying, and it is
true
in this situation as well. It is possible that you are not the only
nonsmoker
who is being inconvenienced, and a common complaint coming from many
people
in a building is more likely to be taken seriously than a complaint
from
only one person.
Try to contact other nonsmokers, not only on a one-to-one basis, but
also by speaking out at tenant meetings, writing an article for an
apartment
newsletter, and posting notices in elevators and on apartment bulletin
boards. Even those who do not suffer from the problem may nevertheless
be sympathetic and lend valuable support, particularly once they know
that
exposure to secondhand tobacco smoke can trigger heart attacks as well
as cancer in nonsmokers.
5) SEEK HELP FROM LOCAL ANTISMOKING ORGANIZATIONS
Local antismoking groups are often in the best position to advise
you
concerning local laws, to help you find doctors and other witnesses who
can assist you, to help obtain publicity about your plight, to put
pressure
on the management, and if necessary to help you find a cooperating
attorney.
You should contact the local or state chapters of the American
Cancer
Society, American Heart Association, American Lung Association, and
other
local antismoking groups for help. You can also use the ASH web site to
find other nonsmokers' rights groups in your state. Click here to view a list
of antismoking and/or nonsmokers' rights organizations in the U.S.
and click here to view a
list of antismoking organzations around the world.
6) REASSURE MANAGEMENT THAT THERE IS NO SUCH THING AS A RIGHT TO
SMOKE
The landlord or condominium management may assume that there is
nothing
they can do about smoking in individual apartments, but that is
certainly
not the law. Many activities which occur in one apartment, but which
cause
annoyance, irritation, or health problems in another, can be regulated
or prohibited outright.
Common examples are the playing of loud music, the storage of paint
or other flammable materials, playing ball or other activities that
cause
excessive vibrations, etc. The law is clear that there is no
constitutional
or other legal right to smoke, even in one's own dwelling.
7) CONSIDER AND PROPOSE DIFFERENT REMEDIES
While it may be possible to order a person not to smoke in an
apartment,
or to smoke only in certain rooms or with a window open, there may be
other
steps which can also be taken, and which should be suggested to the
landlord
or condominium management. These include adding more fresh air intake
into
the ventilation system; changing, cleaning, or installing better
filters;
restricting the amount of air exhausted through the ventilation system
from apartments where persons are smoking, etc.
8) CONSIDER ADVISING MANAGEMENT OF THEIR POTENTIAL LEGAL LIABILITY
It is unfortunately true in our society that people often refuse to
act unless legal consequences are suggested. Therefore, if all else
fails,
you may wish to advise the landlord, condominium management, or even
the
individual members of the condominium board of possible legal liability
for failing to take reasonable steps to protect your health, especially
once the problem has been formally brought to their attention. Such
notification
can best be made politely but firmly in a CERTIFIED MAIL RECEIPT
REQUESTED
letter sent by you, a
local antismoking group, or an
attorney.
9) DETERMINE IF STATE AND LOCAL BUILDING CODES ARE BEING OBSERVED
One tenant's investigation revealed that the presence of a defective
party wall caused his apartment to fill with tobacco smoke from the
adjoining
apartment. When the wall was properly reconstructed the problem ceased.
10) SUGGEST LANDLORDS ESTABLISH SMOKEFREE BUILDINGS
Some landlords with several buildings have arranged for smokefree
and
smoking buildings.
11) IF ALL ELSE FAILS, CONSIDER LEGAL ACTION
As a last resort, you may wish to seek the advice of an attorney to
represent you concerning this matter, and to consider the feasibility
of
bringing legal action against the offending tenant, the landlord or
condominium,
or both, under theories of breach of the covenant of quiet enjoyment,
negligence,
nuisance, etc.
FOR LEGAL REASONS, NEITHER ASH NOR ITS ATTORNEYS CAN SERVE AS
YOUR
ATTORNEY OR PROVIDE INDIVIDUAL LEGAL ADVICE. We may, however, be
able
to provide some assistance to an attorney -- BUT ONLY TO AN ATTORNEY
-- contacting us on your behalf. Click
here to view ASH's List of Anti-Tobacco Lawyers.
12) SHARE THE FOLLOWING SUMMARY OF MULTI-TENANT SECONDHAND SMOKE
CASES
Cases involving environmental tobacco smoke (ETS) incursions into
other
tenants dwellings have begun making their way through the courts in
recent
years. Using theories such as nuisance, breach of warranty of
habitability,
breach of the covenant of quiet enjoyment, negligence, battery,
intentional
infliction of emotional distress, trespass and constructive eviction,
nonsmokers
have generally -- but not always -- prevailed. Some received monetary
compensation,
while others obtained restraining orders or injunctions.
click here for several helpful links and law review
articles and notes
NEW:
Smoking and Multi-Unit Affordable Housing
Following are some of the successful multi-tenant ETS cases:
Weil, Gotshal & Manges LLP v. Longstreet Associates, L.P., Supreme
Court of the State of New York (1998). A 675 lawyer firm in New
York
which occupies 11 floors of the General Motors Building filed suit
against
the landlord and a tenant located one floor below its offices. The suit
alleged that the secondhand smoke from the floor below caused the
firm's
partners and employees "illness, discomfort, irritation and
endangerment
to their health and safety" and prevented some of them from being able
to use or occupy their offices. The firm alleged that the landlord
breached
its contract and constructively evicted the plaintiff and further
alleged
that both defendants permitted a nuisance, engaged in trespass and were
negligent. About a month after the suit was filed it was settled when
the
landlord and tenant agreed to install additional ventilation. See
Hansen,
Mark, "Smoke Gets in Your High-Rise" ABA Journal, November 1998, 24.
See
also Gregorian, D., "Law Firm Smokin' Mad at Neighbors," New York Post,
June 23, 1998, 22; and Arena, S., "Lawsuit Raises Stink Over Cigar
Smoking," Daily News (New York), June 23, 1998, 17.
50-58 Gainsborough St. Realty Trust v. Haile, No. 98-02279,
Boston
Housing Court (1998). A nonsmoker above a smoky bar withheld her
rent,
claiming that the tobacco smoke seeping into her apartment from the bar
directly below deprived her of the quiet enjoyment of that apartment.
When
the landlord sued the tenant for failure to pay rent, Housing Court
Judge
E. George Daher determined that the smoke from the bar below made the
apartment
"unfit for smokers and nonsmokers alike." The judge further found that
"the evidence does demonstrate to the Court the tenants' right to quiet
enjoyment was interfered with because of the second-hand smoke that was
emanating from the nightclub below." The judge awarded the tenants
$4,350.
See Gregorian, D., "Law Firm Smokin' Mad at Neighbors," New York Post,
June 23, 1998, 22; Estes, A., "Tenant Wins Suit over Smoky Home,"
Boston
Herald, June 10, 1998, 1, 4; and "Judge: Landlord Must Stop Secondhand
Smoke," The Recorder (Greenfield, MA), June 11, 1998, 9.
In re. U.S. Department of Housing and Urban Development (HUD) and
Kirk and Guilford Management Corp. and Park Towers Apartments, HUD Case
No. 05-97-0010-8, 504 Case No. 05-97-11-0005-370 (1998). In
September
1996, Nancy V. Kirk filed two complaints under Section 504 of the
Rehabilitation
Act of 1973, as amended, and the Fair Housing Act of 1968, as amended
against
Guilford Management Corp. and Park Tower Apartments. Park Tower is a
HUD-subsidized
high-rise for the elderly and the disabled located in Loves Park,
Illinois.
Ms. Kirk claimed that she has a respiratory condition aggravated by her
neighbors' secondhand tobacco smoke entering her apartment. The parties
entered into a conciliation agreement, approved by HUD in January 1998,
that provided that Park Tower would go smoke-free, beginning with new
tenants
moving in on or after March 15, 1998. Violators of the no-smoking
policy
are subject to written warnings and then to eviction. Park Tower also
agreed
to allow Kirk to move into a less smoke-filled area as the transition
to
a smoke-free building will not occur immediately.
Layon v. Jolley, Case No. NS004483, Superior Ct. of Calif., Los
Angeles
County, (1996). Plaintiffs' sought an injunction prohibiting
defendants
from harassing them by smoking marijuana, cigarettes and cigars in the
garage located under plaintiffs' condominium. Plaintiffs claimed that
the
exposure to ETS had forced them "to evacuate our own home for hours
every
time the defendant goes in his garage to smoke." The court issued a
restraining
order, specifying that "Defendant must stay away from his garage while
smoking." See Russell, K., "Court Clears the Air," Press-Telegram,
April
26, 1996.
Snow v. Gilbert, Middlesex Cty. (MA) Superior Ct., Docket No.
MICV94-07373
(1994). When a landlord violated an earlier agreement not to rent
the
units below hers to smokers, a tenant won a temporary injunction
against
her landlord to prevent him from renting the units to smokers, at least
until she can relocate. The smoke from those units seeped into the
plaintiff's
apartment, causing a severe reaction, since she suffers from multiple
chemical
sensitivity, pulmonary fibrosis and CREST, a form of scleroderma.
Pentony v. Conrad et al., NJ Super. Ct. (1994). The Pentoys
brought
an action to enjoin their downstairs neighbors from smoking between
4:00
P.M. and 9:00 A.M. when the Pentonys were home from work because the
secondhand
smoke from the neighbors apartment seeped throughout the Pentony's
apartment.
After a hearing, the judge ordered the apartment complex directors to
try
to resolve the dispute out of court. The apartment neighbors settled
their
dispute in 1995 but the terms of the settlement are confidential. See
"Neighbors
Settle Smoking Dispute," The Record (Bergen County, NJ), March 2, 1995,
C12. See also, "2 Smokers Are Sued by Neighbors in Apartment Above
Them,"
New York Times, April 28, 1994, B6; "US Couple Sue Downstairs
Neighbours
for Smoking, The Times, April 29, 1994; Gold, J., "Judge Rejects Bid to
Stop Neighbors Smoking," The Record (Bergen County, NJ) S06; Hanley,
R.,
"Judge Turns Down Couple in Quest of Anti-Smoking Order Against Their
Neighbors,"
New York Times, April 29, 1994, B5; "Couple Whose Neighbors Smoke Sent
to Co-op Board," Orlando Sentinel, April 30, 1994, A18; "Judge:
Neighbors'
Smoking Dispute Must be Resolved by Board," The Legal Intelligencer,
May
2, 1994, 8; "Complex Orders Repairs in Fight Over Smoking," The Record
(Bergen County, NJ), May 13, 1994, A27; "Truce Is Reached in a Co-op
Clash
Over Smoking," May 13, 1994, B4; Boronson, W., "Love Thy Neighbor:
Different
Ways to Cope with the Nuisance Next Door," The Record (Bergen County,
NJ),
May 15, 1994, R1; and "Upstairs, Up in Smoke," National Law Journal,
May
23, 1994, A23.
Dworkin v. Paley, 638 N.E.2d
636, 93 Ohio App. 3d 383, (1994).
When the landlord, Paley, who was a smoker, moved into the dwelling
unit
below Dworkin, a nonsmoking tenant, Dworkin wrote to Paley that the
smoking
was annoying him and causing physical discomfort, noting that the smoke
came through the common heating and cooling systems shared by the units
in the two-family dwelling. Later, Dworkin vacated the premises and
subsequently
brought an action to terminate the lease and recover his security
deposit
from landlord, Paley. The suit alleged that Paley had breached the
covenant
of quiet enjoyment and the statutory duties imposed on landlords
(including
doing "whatever is reasonably necessary to put and keep the premises in
a fit and habitable condition"). The Court of Appeals held that tobacco
smoke could be considered a breach of the covenant of quiet enjoyment
and
remanded the case for further proceedings after concluding that
affidavits
presented "the existence of general issues of material fact concerning
the amount of smoke or noxious odors being transmitted into appellant's
rental unit".
Fox Point Apt. v. Kippes, No. 92-6924, (Lackamas County (OR)
Dist.
Ct. 1992). A landlord moved a known smoker into the apartment below
a nonsmoking tenant who suffered nausea, swollen membranes and
respiratory
problems from the cigarette smoke entering her apartment. The tenant
sued
the landlord, alleging breach of habitability and breach of the
covenant
of peaceful enjoyment which the common law implies in every rental
agreement.
The jury unanimously found a breach of habitability, awarded medical
costs
and reduced the rent by 50%.
Donath v. Dadah, No. 91-CV179 (Worcester Cty., MA, Housing Court
Dept. 1991). The tenant sued her landlord for nuisance, breach of
warranty
of habitability, breach of the covenant of quiet enjoyment, negligence,
battery and intentional infliction of emotional distress due to
exposure
to secondhand tobacco smoke coming from the second floor where the
defendants
live. Plaintiff alleged that she has suffered asthma attacks, labored
breathing,
wheezing, prolonged coughing bouts, clogged sinuses and frequent
vomiting
due to the exposure to the secondhand smoke. The case was settled for
an
undisclosed sum of money in December 1992.
Bradley v. American Smelting
& Refining Co. , 104 Wn.2d 677 (1985) The court found
that particulate matter drifting onto property of the plaintiff
constituted a common law trespass.
EDWARD BABBITT, SR. v. JOSEPH
O. DiPUZO May 13, 2004 “This is a
preliminary opinion on a neighbor versus neighbor case precipitated by
drifting cigar smoke. The court ruled that drifting tobacco smoke
is an actionable tort, and that the suit could proceed.”
Harwood Capital Corp. v. Carey, (Boston Housing
Court Docket No. 05-SP-00187, 2005). A landlord sought
to evict two tenants after receiving complaints from abutting residents
about the strong smell of smoke emanating from their apartment.
The tenants' lease did not mention smoking. The tenants worked
out of the unit; they combined to smoke about 40 to 60 cigarettes per
day, After a three-day trial, a jury returned a verdict that the
Carey had breached his lease under a clause in the standard Greater
Boston Real Estate Board lease prohibiting tenants from creating a
nuisance or engaging in activity that substantially interfered in the
rights of other building occupants. The jury also ruled that,
therefore, the landlord was entitled to possession of the unit.
Merrill v. Bosser
(Broward County Circuit Court, Case No. 05-4239 (2005)).
Condominium owner sued a neighbor over secondhand smoke entering her
unit, alleging trespass, nuisance, and breach of covenant. The judge
agreed on all three counts, and awarded Merrill medical expenses and
legal fees.
Milo Earl Tudor, Jr., #243378,05
v. Michael Moore et al. (U.S. District Court for the District of SC,
C/A No.: 2:98-1927-RBH (2005)). Asthmatic prisoner sued
officials over exposure to secondhand smoke. Judge found for plaintiff
on grounds of "deliberate indifference to conditions posing a
substantial risk of serious future harm" and awarded prisoner $3200.
THE FOLLOWING IS AN ASH PRESS RELEASE WHICH RELATES TO THIS ISSUE
*********
FOR IMMEDIATE RELEASE:
Wednesday, March 9, 2005
Secondhand Tobacco Smoke More Dangerous Than Smoking Itself
Implications for Women Especially Frightening
Scientists conducting a study on the effects of Environmental Tobacco
Smoke (ETS) say that secondhand tobacco smoke causes breast cancer and
that it is more likely to cause breast cancer in young women than
smoking itself.
"This study could have a broad impact on public policy, and lead to
even tougher anti-smoking regulations and more lawsuits," says law
professor John Banzhaf, Executive Director of Action on Smoking and
Health (ASH). The study was conducted by scientists for the California
Air Resources Board.
Although recent studies have linked smoking to breast cancer, this is
the first study to show definitively that secondhand tobacco smoke is a
cause of the dreaded disease that kills 40,000 women each year in the
U.S.
Breast cancer is now the second leading cause of cancer deaths in
women, behind only lung cancer. It kills more middle-age women than any
other disease. Every fifteen minutes at least three women will develop
breast cancer, and one will die.
Professor Banzhaf stated that this study will have a major impact on
women's health, and it makes it clear that women should be especially
careful to avoid any situation in which they are exposed to tobacco
smoke. This is particularly true for women who have a
higher-than-normal risk of contracting breast cancer, including women
with long-term ETS exposure, especially young women.
"Citing Environmental Tobacco Smoke [ETS] exposure as a known cause of
breast cancer could have potentially devastating effects on the tobacco
industry as we know it, and induce far more successful legislation to
protect non-smokers from the life-threatening effects of secondhand
tobacco smoke," says John Banzhaf.
There have been many successful legal actions relating to lung cancer
and other diseases caused by tobacco smoke pollution, but this new
research opens the door to law suits for breast cancer against
companies which still permit smoking in workplaces, especially if the
sympathetic young women plaintiffs can show that they have never been
exposed to tobacco smoke in their homes while growing up or after
establishing their own residences.
Banzhaf notes that the U.S. Supreme Court has recently upheld a jury
verdict in a wrongful death action caused by an exposure of only
several hours to secondhand tobacco smoke, and that the Centers for
Disease Control have also warned that even brief exposure to tobacco
smoke can cause death.
"The fact that breast cancer alone is perhaps the most feared type of
cancer in women could very well be a powerful new warning tool which
could be used by anti-smoking organizations, as well as those arguing
for more restrictions on smoking," said Banzhaf.
Helpful Links:
Smokefree
Environments Law Project
The
Center for Social Gerontology/Smoking Policies in Facilities Serving
Older Persons
Tobacco
Control Resource Center/Northeastern University School of Law
Common
Law/State Law Claims for Tenants Exposed to Drifting Smoke
Surviving
and Triumphing in Residential Settings with Secondhand Smoke Intrusions
ASH Files Brief Amicus Curiae in
Passive Smoking Suit Between Condo Neighbors -contains link to
actual brief
Law Review Articles and Notes:
ARTICLE: "Get Your Ashes out of my
Living Room!(intro)": Controlling Tobacco Smoke in
Multi-Unit Residential Housing, 54 Rutgers L. Rev. 135 (2001)
ARTICLE: Smoke Knows
No Boundaries: Legal Strategies for Environmental Tobacco Smoke
Incursions into the Home Within Multi-Unit Residential Dwellings,
TC Online, Tobacco Control, (Feb. 9, 2000)
This information is presented as a public service by:
Action on Smoking and Health (ASH)
2013 H Street NW / Washington, DC 20006 / (202) 659-4310
A national nonprofit, scientific and educational organization founded in 1967.
All donations are fully tax deductible.
Dedicated to Mr. and Mrs. Warren Wells
