Handling Unwanted Tobacco Smoke in Apartments and Condominiums
by www.no-smoke.org
Secondhand smoke seeping into apartments or condominiums
from neighboring units poses both a health risk and a significant
nuisance. Unfortunately, there are no fail-proof solutions to this
problem. Since personal dwellings are not considered public spaces,
they are generally not covered under existing legislation regulating
smoking in public places, though some municipalities may restrict
or prohibit smoking in common areas of multi-unit dwellings. The
record of resolving such conflicts in the courts is somewhat mixed.
Nonsmokers have filed lawsuits against landlords or fellow tenants
on the basis of nuisance, breach of statutory duty to keep the premises
habitable, breach of the common law covenant of peaceful enjoyment,
negligence, harassment, battery, and intentional infliction of emotional
distress; courts have ruled for and against nonsmokers in individual
cases.
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However, there are still a number of steps that you
can take to protect yourself from secondhand smoke. The following
suggestions may prove useful.
Clarify your goals.
Your main goal is clear-you want to breathe smokefree air.
But it will be helpful if you have some specific ideas about how
you want the problem resolved. Do you want an expense-paid voluntary
relocation? Do you want out of your lease? Do you want modifications
to be made to the ventilation system or the physical structure
of the building? Do you want cracks sealed? Do you want one or
more buildings of a multi-building complex designated as completely
nonsmoking? Do you want all common areas, both inside and out,
designated nonsmoking? Do you want the owner or manager to add
a no smoking clause to all future rental agreements? The more
you can clarify just what it is you want from the neighbor or
the manager, owner, or owner's association, the better your position.
This leads to the next point.
Come up with as many possible solutions as you can. While you
may not be able to stop a person from smoking in their apartment,
for example, you may be able to get them to agree to smoke near
an open window. Other possible solutions include checking on the
ventilation system-the filters may need to be changed, cleaned,
or upgraded. (Improved ventilation may reduce, but will not eliminate,
your exposure to secondhand smoke.) Also, try to ensure that the
building itself is up to all state and local building codes. Structural
defects can cause an excess amount of smoke to travel between
apartments.
If you live in a condominium, one solution that you might pursue
is changing the conditions, covenants and restrictions so that
the condo is declared smokefree. If you live in an apartment,
you can encourage the management to gradually create a smokefree
environment by adding smokefree language to the leases of new
tenants. We have a model policy for a smokefree condominium or
apartment that can be used for these purposes.
Do your research.
Read the enclosed materials carefully. They will provide you
with well documented information about the dangers associated
with exposure to secondhand smoke, and will acquaint you with
strategies that others have used to deal with similar problems.
Check to see if there are any applicable municipal or state
laws that regulate or prohibit smoking in common areas of multi-unit
dwellings. Your city or county health department or a local chapter
of one of the voluntary health associations (e.g. American Lung
Association, American Cancer Society or American Heart Association)
can assist you. You can also contact the city or county clerk's
office to obtain a copy of any applicable law.
Read your lease or condominium agreement. Most leases contain
a "nuisance clause" that prohibits tenants from engaging
in any activity that interferes with another tenant's peace and
well being. Typically, it is designed to protect tenants from
loud music, noxious odors, noisy late-night parties, etc. Arguably,
it also includes protection from undue exposure to secondhand
smoke.
Try to resolve the situation amicably.
Approach the situation positively. Begin with the assumption
that your neighbor and manager are interested in your comfort
and well-being. Take a friendly, educational approach. Let the
neighbor know that you are experiencing difficulty from their
secondhand smoke, and that you are concerned about your health.
Let them know that you are flexible and interested in working
out a mutually satisfying solution.
Don't assume that your neighbors or your landlord know much
about the health effects of secondhand smoke. Secondhand smoke
causes a host of ailments, and exacerbates pre-existing conditions,
in nonsmokers - lung cancer, heart disease, asthma, ear infections
in children, sudden infant death syndrome (SIDS) just to name
a few. Try posting information about secondhand smoke on apartment
bulletin boards, in laundry rooms, or in condominium newsletters.
Share information with Property Management.
Your management company or owner's association may be unaware
that it is legal to designate an apartment building or condominium
smoke-free. People often mistakenly believe that there is a legally
protected "right to smoke." However, there is no such
legal right, and the courts have held that protection of nonsmokers
against the hazards of secondhand smoke takes precedence over
smokers' desire to light up wherever they choose (Sweda, 1997).
A smoke-free policy, however, is best accomplished gradually.
The Park Tower Apartments in Loves Park, Illinois, for example,
implemented a policy that bars new tenants from smoking anywhere
in the building, including inside their individual dwellings,
but the policy did not affect those who were already tenants when
the policy went into effect. You may want to share with your manager
the enclosed Guide for Owners and Managers.
Property managers also may not be aware of the various legal
protections afforded nonsmokers and the legal remedies that can
be pursued by someone who is being impacted by secondhand smoke.
Sharing what you have learned about the laws protecting you can
empower your landlord to take a more active stance in the situation.
Keep in mind, however, that there are no clear-cut legal protections
against secondhand smoke for tenants. You are dealing in a "gray
area" of the law. Avoid becoming belligerent. Your goal is
to obtain voluntary assistance.
You may also want to remind management of the significant economic
costs associated with smoking. Smoking increases the risk of fire,
requires more frequent painting, increases maintenance costs,
and hikes insurance rates (Carlson, 1997).
Find allies.
You may not be the only one affected by secondhand smoke in
your apartment or condominium complex. Other tenants may be willing
and interested in joining with you to find a solution. Find out
if any of the other tenants have health problems that make them
particularly susceptible to the hazards of secondhand smoke. When
discussing the problem of seeping secondhand smoke with the landlord,
owner, or management association, you are likely to have greater
success with many voices instead of one.
Other good allies may include voluntary health groups such
as the American Cancer Society, the American Lung Association,
and the American Heart Association. These groups may be able to
advise you about specific nuisance or tenant-rights laws in your
area, and to recommend how to go about getting your complaint
heard and heeded.
Get a note from your doctor.
A letter from your physician lends credibility to your complaint.
If you have greater than average sensitivities to tobacco smoke,
get them documented. Possible smoke-related conditions include
sore throat, asthma, pulmonary or cardiac disease, hay fever,
headache, and allergies. If your first informal complaint to management
is not addressed to your satisfaction, send a formal complaint,
together with your physician's letter, both to the property owner
and the offending neighbor. Again, indicate that you wish to resolve
the situation amicably. It's always smart to send such paperwork
Certified Mail, Return Receipt Requested.
There are always last resorts.
Consult an attorney before seeking a legal remedy. If nothing
else has worked, don't be afraid to resort to the threat of a
lawsuit. No one wants to be sued. Advise management of its potential
liability in this matter. A body of case law is building that
holds management responsible for exposing tenants to ETS. Tenants
have sued on the basis of nuisance, breach of statutory duty to
keep the premises habitable, breach of the common law covenant
of peaceful enjoyment, negligence, harassment, battery, and intentional
infliction of emotional distress (Sweda, 1997). Send your letter
of intent to sue Certified Mail, Return Receipt Requested. If
you think you may need to resort to legal action, be sure to keep
a paper-trail. Make dated notes of all interactions; keep copies
of correspondence.
Help protect both yourself and others: Pass
a local ordinance.
You are not alone. More and more people are complaining
of secondhand smoke in multiunit dwellings. Working together, you
can make a difference. The best protection comes from enacting a
local law that protects people such as yourself from the hazards
of secondhand smoke. A local ordinance could do one or more of the
following:
1. Prohibit smoking in all public areas of apartment
or condominium complexes. Many communities in numerous states
have such a law. Similarly, Minnesota has a state law that restricts
smoking in all common areas of apartment buildings, such as rental
offices, entrances, hallways, exercise and swimming pool areas,
and laundry rooms.
2. Require apartment and condominium complexes
with two or more buildings to designate at least one building
as smokefree.
3. Require owners to disclose to potential new
tenants when either (a) an apartment or condo unit was rented
to people who smoked within the past year, or (b) a previous tenant
moved because of tobacco smoke drifting into the unit.
A guidebook is available from ANR detailing how to
pass a local ordinance. You can order a copy by calling us at 510-841-3032
and requesting Clearing the Air.
This information is not intended to serve as legal
advice by the ANR Foundation; the law varies from jurisdiction to
jurisdiction. If you intend to file a lawsuit, please consult an
attorney who is familiar with the laws in your community.
References
Carlson, R. Smokefree Air Everywhere. New Jersey Group
Against Smoking Pollution (GASP), 1997.
Sweda, E. Summary of Legal Cases Regarding Smoking in the Workplace
and Other Places. Boston, MA: Tobacco Control Resource Center, Inc.,
December 1997.
Copyright 1998, 2001 - The American Nonsmokers'
Rights Foundation
First Published: March, 2004
Updated: February 2007
