Smoke-Free Environments Law Project
The Center for Social Gerontology, Inc.
2307 Shelby Avenue
Ann Arbor, Michigan 48103
734 665-1126 • fax 734 665-2071 • sfelp@tcsg.org
SECONDHAND SMOKE IN APARTMENT
BUILDINGS AND CONDOMINIUMS
Introduction:
As the public's understanding of the damaging health effects
of secondhand smoke has grown, so too has concern grown regarding unwanted
exposure to secondhand smoke in apartment buildings and condominiums. More and
more people are voicing concerns that the tobacco smoke produced by neighbors
is seeping into their own homes, often causing annoyance and discomfort and,
sometimes, illness. These concerns are best resolved amicably, through
discussion and reconciliation between neighbors and building managers. This is
not always possible, however, and when that is the case, legal action may be
warranted. Such actions have been brought across the United States, sometimes
leading to out-of-court settlements, other times to verdicts in favor of one of
the parties. This fact sheet describes the legal options available to the
resident of an apartment or condominium that is exposed to secondhand smoke
against their will.
First Steps: Document the Problem and, if Necessary, Seek Assistance from the Landlord or Condominium Management
One of the first actions that the resident affected by a
neighbor's smoke should take is to document the problem by recording the nature
of the problem and any health effects suffered as a result. The latter might
include exacerbation of one's asthma, hay fever, heart disease, emphysema or
other conditions worsened by exposure to secondhand smoke, including lesser
problems such as sore throat or headache. Having on hand a letter from a
physician that documents these problems can be very helpful.
Next, examine the rental lease or condominium agreement.
Most residential contracts prohibit the inhabitants of such dwellings from
engaging in activities that unreasonably interfere with the enjoyment of the
premises by other tenants or owners. This contractual obligation applies to
activities engaged in by a person in his or her own residence. Such prohibited
activities typically involve producing offensive odors (such as by cooking) and
creating loud noises (such as by playing loud music or having parties late at
night). It is logical to assume that the prohibition against interference with
a neighbor's enjoyment of the premises includes smoking, particularly when the
smoke seeps from the residence of one tenant or owner into that of another,
causing discomfort or illness.
Ideally, the affected resident will inform their smoking
neighbor about the problem, perhaps informing them of the actual and potential
deleterious health effects of secondhand smoke exposure, such as bronchitis,
ear infections (especially in young children), exacerbation of asthma, heart
disease and even lung cancer. If the neighbor declines to voluntarily cease
smoking on the premises, the affected resident can alert the condominium
management or landlord that their neighbor is breaching their right to the
quiet enjoyment of the premises and ask that such conduct be prohibited.
Delivering a copy of the physician's letter and a highlighted copy of the
relevant language in the lease or condominium agreement to the management or
landlord is advisable.
It is important to emphasize with the condominium management
or landlord that they have the authority to prohibit or restrict activities,
including smoking, that take place in one dwelling and cause annoyance or
health problems in another. While the management or landlord might initially
assume that they cannot take such action, they are most likely mistaken in this
assumption.
Different remedies can be pursued, either amicably with
one's neighbor or, if necessary, through the intervention of the landlord or
management. In lieu of total elimination of smoking by the neighbor, other
options that might also be satisfactory include, for example:
When Such Efforts Aren't Enough…
If taking the steps described above fails to resolve the
problem, it may be necessary to pursue legal action to protect one's
entitlement to breathe clean air in their apartment or condominium. In that
case, the affected party can advise the landlord or condominium management, and
perhaps also the members of the condominium board, of possible legal liability
for failing to take reasonable steps to alleviate the problem. It is important
to provide written notification, which may be sent by an attorney.
Options for Legal Action and Some Sample Cases
There are a number of legal approaches that may be taken by
the affected party. These include constitutional law, state and local building
codes and common law.
Constitutional Law. At the most basic level, it should be noted that
there is no constitutional or other legal right to smoke, even in one's own
dwelling.
State and Local Building Codes. In some cases, a defect in the
construction of the building - for example, a defective party wall - might be
responsible for the seepage of smoke from one dwelling to another. If this is
the case, state or local building codes may have been violated, and a legal
action can seek to have the defective area properly reconstructed.
State Sanitary Codes. Non-smoking residents may also explore the use of
state regulations, such as sanitary codes, as the basis for legal action. As
explained in an analysis by Robert L. Kline, Esq., titled Smoke Knows
No Boundaries: Legal Strategies for Environmental Tobacco Smoke Incursions into
the Home Within Multi-Unit Residential Dwellings,http://www.tcsg.org/sfelp/kline.htm
this strategy may offer the injured party the advantage of using an
administrative system to seek correction of health violations. Taking this
approach, the complaining party might take his or her case to a local board of
health, which would then review the facts of the case and examine the
scientific and medical data relating to the health effects of secondhand smoke.
In most instances, courts defer to the decisions of such expert administrative
bodies and will only overturn their decisions if they were made arbitrarily or
capriciously.
Americans with Disabilities Act. Title III of the Americans with
Disabilities Act protects disabled individuals who are eligible to receive
service or participate in programs or activities provided by a public
accommodation or commercial facility. Under the ADA, an individual is
"disabled" if he or she has a physical or mental impairment that 1)
substantially limits a major life activity, such as breathing, walking or
working, 2) has a record of such an impairment, or 3) is regarded as having
such an impairment. While Title III does not apply strictly to residential
facilities, it does cover places of public accommodation within residential
facilities if the use of such places is not limited exclusively to owners,
residents and their guests. If a portion of a residential facility is open to
the public, the protections and legal avenues provided by the ADA apply. Such
locations include, for example, rental offices, pool areas or exercise
facilities where memberships are sold to the general public and party rooms
that may be rented to the public.
Common Law Theories. Significant precedent exists for pursuing remedies
under the common law, including bringing legal action under the following
theories:
· breach of the covenant of quiet enjoyment
· negligence
· nuisance
· breach of warranty of habitability
· battery
· intentional infliction of emotional distress
· trespass
·
constructive eviction
The Laws of Michigan
The laws of Michigan are similar to those of most states.
While no legal decisions have been rendered under Michigan's statutory or
common (i.e., non-statutory) law concerning exposure to secondhand smoke in a
condominium or apartment building, Michigan law generally provides that a
landlord is not liable for injuries sustained by a tenant that are caused by a
third person, including another tenant, unless the injury was sanctioned by the
landlord. A landlord's duty to a tenant arises when the risk of harm is foreseeable and the risk is unreasonable. The court decisions have involved
cases dealing with inured parties' exposure to unreasonable risks of harm
resulting from foreseeable activities occurring within the common areas of a
landlord's premises, including criminal activity (such as assaults) and
physical injury from negligence (such as snow removal). See Michigan Civil
Jurisprudence,
"Landlord and Tenant" § 63, pp. 385-88 (citing cases).
Based on such legal theories, an individual living in an
apartment or condominium, who is placed at risk by exposure to secondhand smoke
produced by a neighbor, might have a legitimate legal complaint against the
landlord or management. However, in order to impose a legal duty on the
landlord or building management to protect the tenant or condominium owner
against a neighbor's tobacco smoke, it is important that the individual start
by informing the landlord or management about the problem. If the landlord or
management then fails to address the problem effectively, this would expose
them to potential liability. Ibid.
When a landlord fails to remedy the problem, and this
results in the tenant having to vacate the premises, this is sometimes regarded
as an eviction. This type of eviction is referred to as a constructive
eviction, as
distinguished from an actual eviction where the landlord orders the tenant to
leave. Courts in Michigan have found that tenants have suffered constructive
evictions when the landlords' acts demonstrated that the landlords intended to
deprive their tenants of possession by knowingly failing, for example, to
provide adequate heat or control rodent infestation. Michigan Civil
Jurisprudence,
"Landlord and Tenant" § 29, pp. 342-44 (citing cases). It is
possible, therefore, that a landlord's failure to take action that
substantially reduces or eliminates a tenant's exposure to secondhand smoke
from a neighbor's apartment - if it results in the tenant's having to vacate
the premises - could lead to a finding of constructive eviction.
Cases decided in Michigan on the theory of nuisance
Michigan Civil Jurisprudence, "Nuisances" § 1, p. 53 et seq. (citing cases).
While courts have determined that no one is entitled, in every circumstance, to
air utterly uncontaminated by any odor whatsoever in their place of residence,
they have found that, "when stenches contaminate the atmosphere to such an
extent as to substantially impair comfort or enjoyment of adjacent premises, an
actionable nuisance may exist." Ibid. § 14, p. 74-78 (citing cases).
In addition, Michigan cases applying the theory of trespass
to vindicate the rights of injured persons might be used by individuals exposed
to secondhand smoke in their apartments or condominiums. The law is clear that
unauthorized intrusion on one's private premises by another person is a
trespass which gives rise to potential legal liability. In short, "one is
liable for trespass if he or she, without consent, intentionally causes a thing
or substance to enter [the premises] in the possession of another." Michigan
Civil Jurisprudence,
"Trespass" § 3, p. 352 et seq . (citing cases; emphasis added).
Case Law from Various Jurisdictions
Employing the legal approaches noted above, residents of multiple-person
dwellings and office buildings have in some cases prevailed. The following
summarizes some of the legal cases that have been decided in various
jurisdictions around the country.
Fox Point Apt. v. Kippes, No. 92-6924,(Lackamas County (OR)
Dist. Ct. 1992). The landlord moved a known smoker into the apartment below a
nonsmoking tenant who began to suffer nausea, swollen membranes and respiratory
problems as the cigarette smoke entered her apartment. The tenant sued the
landlord, alleging that the landlord had breached its statutory duty to keep
the premises habitable and the covenant of peaceful enjoyment which the common
law implied in every rental agreement. The jury unanimously found a breach of
habitability, reduced the plaintiff's rent by 50 percent and awarded the tenant
medical costs.
Donath v. Dadah, et al., No. 91-CV179 (Worcester Cty., MA, Housing Court
Dept. 1991). A 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 in her home emanating from the second floor apartment of the
defendants. The plaintiff alleged that she had suffered asthma attacks, labored
breathing, wheezing, prolonged coughing bouts, clogged sinuses and frequent
vomiting due to the exposure to secondhand smoke in her home. The case was
settled for an undisclosed sum of money. She moved out of the apartment shortly
after filing the lawsuit.
Dworkin v. Paley, 638 N.E.2d 636,93 Ohio App. 3d 383, (Ohio App. 8 Dist.
1994). A nonsmoking tenant, Mr. Dworkin, entered into a one-year lease with the
landlord, Ms. Paley, to reside in a two-family dwelling. The lease was later
renewed for an additional one-year term. During the second year, Paley, a
smoker, moved into the dwelling unit below Dworkin's. Two weeks later, Dworkin
informed Paley in writing that her smoking was annoying him and causing
physical discomfort. Dworkin noted that the smoke came through the common
heating and cooling systems shared by the two units. Within one month, Dworkin
vacated the premises. Eight months later, he filed a lawsuit to terminate the
lease and recover his security deposit from Paley. The legal action, alleging
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")
was dismissed on a motion for summary judgment. The court of appeals reversed
the dismissal, concluding that exposure to secondhand tobacco smoke could
constitute a breach of the covenant of quiet enjoyment. The appellate court
remanded the case for further proceedings, finding that a review of the 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."
Pentony v. Conrad et al., NJ Super. Ct. (1994). The
plaintiffs sought an injunction preventing their downstairs neighbors from
smoking between 4:00 P.M. and 9:00 A.M. (when the Pentonys would be home from
work) in their apartment because the secondhand smoke seeped throughout the
Pentonys' apartment. After a two-hour hearing, the judge ordered the apartment
complex directors to try to resolve the dispute out of court. The neighbors
settled their dispute, but the terms of the settlement remain confidential. See
"Neighbors Settle Smoking Dispute," The Record (Bergen County, NJ),
March 2,1995,C12; "2 Smokers Are Sued by Neighbors in Apartment Above
Them," New York Times, April 28,1994,B6; "US Couple Sue Downstairs
Neighbors 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 Counting),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.
Snow v. Gilbert, Middlesex City. (MA) Superior Ct., Docket No. MICV94-07373
(1994). A woman suffering from multiple chemical sensitivity, pulmonary
fibrosis and CREST, a form of scleroderma, won a temporary injunction against
her landlord to prevent him from renting the units below hers to smokers, at
least until she succeeded in finding another apartment elsewhere. The landlord
was found to have violated an earlier agreement not to rent the units to
smokers. The smoke emanating from the units rented to smokers consequently
seeped into the plaintiff's apartment, causing a severe reaction.
Layon et al. v. Jolley, et al., Case No. NS004483, Superior Ct. of
Calif., Los Angeles County (1996). The plaintiffs sought an injunction
prohibiting harassment. According to the complaint, the plaintiffs' condominium
sat above a garage where the defendants smoked marijuana, cigarettes and
cigars. The exposure to secondhand smoke had forced the plaintiffs "to
evacuate our own home for hours every time the defendant goes in his garage to
smoke." The court issued a restraining order, specifying, "Defendant must
stay away from his garage while smoking." See Russell, K., "Court
Clears the Air," Press-Telegram, April 26,1996.
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). Two complaints were filed in September 1996 by
Nancy V. Kirk under Section 504 of the Rehabilitation Act of 1973 and the Fair
Housing Act of 1968 against Guilford Management Corp. and Park Tower Apartments.
Ms. Kirk claimed that she had a respiratory condition that was aggravated by
exposure to her neighbors' secondhand tobacco smoke, which seeped into her
apartment at Park Tower, a HUD-subsidized high-rise for the elderly and the
disabled. The parties entered into a conciliation agreement, which was approved
by HUD. The agreement provided that Park Tower would go smoke-free, beginning
with new tenants only, who moved in on or after March 15,1998. Smokers could
move in, but only if they agreed to comply with the no-smoking policy.
Violators of the no-smoking policy would be subject to written warnings and
eventually to eviction. Since the transition to a smoke-free building would
take many years, Park Tower agreed to inquire of several tenants currently residing
in an area of the building having fewer smokers as to their willingness to be
relocated elsewhere in the building, thus making available an apartment for
Kirk to move to a less smoke-filled area.
50-58 Gainsborough St. Realty Trust v. Haile, et al., 13.4 TPLR 2.302,No.
98-02279,Boston Housing Court (1998). A nonsmoker who lived with her husband in
an apartment directly above a smoky bar was sued by her landlord for failure to
pay rent. The tenant had withheld the rent, alleging that the smoke seeping
into her apartment deprived her of the quiet enjoyment of that apartment. A
Housing Court judge ruled that the amount of smoke from the bar below had made
the apartment "unfit for smokers and nonsmokers alike." The judge
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 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.
Weil, Gotshal & Manges LLP v. Longstreet Associates,
L.P., et al., 13.4
TPLR 3.188,Supreme Court of the State of New York (1998). A large law firm in a
New York City office building filed suit against the landlord and a tenant
located one floor below its offices. The law firm alleged that the secondhand
smoke emanating from the floor below had caused some of the firm's partners,
associates and employees "illness, discomfort, irritation and endangerment
to their health and safety" and prevented some of their personnel 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. The law firm later dropped the suit because the owner and the tenant
agreed to remedy the smoke problem voluntarily. See 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. See "Law Firms Drops Smoking Lawsuit," Crain's New
York Business, September 14,1998,1.
Lipsman v. McPherson, 19 M.L.W. 1605 No. 90-1918, (Middlesex, MA,
Superior Court 1991). A nonsmoking tenant sued a smoking tenant of an apartment
in the same building, alleging nuisance and negligence because the smoke from
the defendant's apartment regularly seeped into the plaintiff's apartment,
causing him annoyance, discomfort and increasing his risk of physical harm due
to exposure to secondhand tobacco smoke and of fire. The defendant filed a
motion to dismiss. The court dismissed the claims for negligence and risk of
fire, but allowed the claim of private nuisance to be heard. The defendant won
at trial before a judge without a jury. The court ruled that the
"annoyance" of smoke from three to six cigarettes per day was
"not substantial and would not affect an ordinary person." It also
held that the "plaintiff may be particularly sensitive to smoke, but an
injury to one who has specially sensitive characteristics does not constitute a
nuisance." Shortly after this decision, the Defendant moved out.
Platt v. Stella Landi, et al., No. BC 152452,Calif. Super. Ct.,
Los Angeles County, (1996). A nonsmoking owner of a condominium unit sued his
downstairs neighbor and the condo association because of the cigarette smoke
that drifted through his open windows from the unit below. The plaintiff sought
to prohibit his neighbors from smoking anywhere in the development or from
smoking in their condominium, except with the windows closed and under certain
conditions. He also wanted the landlords to refrain from renting the
neighboring condominiums to smokers. The trial court dismissed the case and the
plaintiff appealed. He later sold his unit and vacated the building. The court
of appeal ruled that since both the plaintiff and the downstairs neighbor had
moved from the building, the case was moot. In addition, the court did not
overturn the trial court's ruling awarding attorneys' fees to the defendants.
See Liss, R., "Non-Smoker Sues Neighbors," Los Angeles Daily Journal,
June 28,1996; and Simon, S., "Smoke and Ire: Man's Suit Over Neighbors'
Cigarettes Could Open New Front in War on Tobacco," Los Angeles Times,
July 5,1996,B2.
___________________________
Prepared by SFELP, July 6, 2000