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
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.
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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
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)
Action on Smoking and Health
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