How can you lose?
For apartments -- a planned conversion
is recommended. We recommend a
three month notice to tenants advising them that the
building is going smoke free. Use that time to attract
new tenants for the ones you will surely lose. If you
want to spread it over a longer period, tie it to the
termination dates of the leases. Have a clause in all new
leases that commit tenants to the expense of any damages or costs that results from violation of the lease.
You can probably push the issue if
some smokers rebel, but the legal issues should be
discussed with an attorney. An attorney friend advises us
that typical leases have a clause prohibiting a tenant
from using the premises in such a manner as to interfere
unreasonably with use by another occupant of the same
building. Nuisance rules in the leases may control here.
The property owner has a right to
determine what is permitted on the premises, however the
tenants should be given adequate notice of the changed
policy. It could be determined by the courts that it doesn't apply to current tenants until
their lease expires and a new lease is signed, but on the other hand
this is not an eviction. It is simply a demand not to disperse toxic
materials, an obligation under the law. It is a good idea to set a date in the
future when the building will become smoke free. The
landlord should advise the smoking tenants that the
no-smoking policy will go into effect against them when
their lease term is over. The landlord should have a
provision in any new leases prohibiting smoking anywhere
on the premises by the tenant or guests of the tenant. If
it's in a signed lease, any tenant would be hard pressed
to argue against it. (Note, however, that nothing in the lease can
circumvent your legal rights under the law. Download the complete
booklet above for more details.)
[Thanks to Beverly
Jambois of the Kenosha County Tobacco Free
Coalition for her assistance on this.]
For condominiums --
SMOKING
PROBLEMS FROM NEIGHBORING
CONDOMINIUMS, APARTMENT BUILDINGS, AND OFFICES
GASP of Colorado receives
an increasing number of complaints about seeping tobacco
smoke from neighboring apartments, condominiums, and
offices that are causing annoyance, irritation, and
sometimes even illness. Although GASP cannot provide
individual legal advice, and although the law varies from
community to community, the purpose of this paper is to
provide some suggestions for dealing with this problem.
This paper is geared toward apartment or condo dwellers,
but many of the suggestions could be used in office
building settings.
1) Examine your lease.
Many documents contain
covenants, conditions, or terms prohibiting persons
living in a building from engaging in activities -- even
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 is another, particularly where it can be shown that the
smoke is being carried by the ventilating system, or by
other means, such as seepage through electrical outlets, 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) Obtain medical
documentation.
If you, (or someone who
lives in your apartment) have asthma, 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 this
letter can then be sent by certified mail, receipt
requested to the landlord or condominium management -- and even to the persons who are
smoking -- to put them on
notice of your condition. Even if you do not have a
recognized medical condition, 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. If you want to go one step
further, you can obtain a blood test to document the level of nicotine (cotinine)
in your blood (though the half-life on this is relatively short and will not
show signs unless exposure was recent).
3) Seek out others 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 person who is being inconvenienced, and a
common complaint coming from many people is more likely
to be taken seriously than a complaint from only one
person. Try to contact other neighbors, 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.
4) Seek help from other
pro-health groups.
Various groups and
departments may be able 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
may want to contact the American Cancer Society, American
Heart Association, American Lung Association, local
health departments, city attorneys, and other local groups for
help. The Trial Lawyers Assn., the Bar Association, or United Way may be able to
help you find legal help. The Tobacco Liability Project
may be able to offer some assistance: Call toll-free
1-800-ETS-SUIT.
5) Reassure management
that there is no 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 pain or other
flammable materials, playing ball or other activities
which cause excessive vibrations, etc. The law is clear
that there is not constitutional or other legal right to
smoke, even in one's own dwelling. Colorado's state law
allows building owners to implement their own regulations
on smoking. There are a number of smoke-free buildings,
condos, offices, and major corporations in Colorado.
6) 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
could 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.
7) Offer smoking
cessation help to the person causing the problem.
Most smokers, 90%, want
to quit smoking. Offer your help to them, and consider
offering to help pay for the costs. This might be cheaper
than a law suit.
8) Consider advising
management of potential 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. However, attorney's say that you will
have a better case if you can demonstrate and document
that you have made every attempt to resolve the problem
before going to court. Such notification can best be made
politely but firmly in a certified mail receipt requested
letter sent by you, a pro-health group, or an attorney.
9) 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. GASP and other groups may be able to help
provide you with the names of local attorneys who are
sympathetic to the plight of the nonsmoker.
10) Talk to others about
the dangers of secondhand smoke.
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 in nonsmokers, and that it causes
thousands of deaths among nonsmokers each year. If you do
not already have this information, write or call GASP for
our list of educational materials.
Notes:
Nothing in this paper
shall constitute legal advice.
Please consult an attorney before pursuing legal action.
This
paper has been adapted and modified from a similar paper
issued by
ASH, Action on Smoking and Health
2013 H St NW, Washington, D.C. 20006
(202) 659-4310.
GASP of
Colorado
2885 Aurora Avenue, Suite 37
Boulder, CO 80303
(303) 444-9799
Other resources:
The
Smoker Next Door ...
Handling Unwanted Tobacco Smoke in Apartments and Condominiums
Americans
for Nonsmoker's Rights, August 1999
Secondhand
Smoke in Apartments and Condominiums:
A Guide for Owners and Managers
Americans
for Nonsmoker's Rights, August 1998
Secondhand
smoke in apartment buildings and condominiums
Smoke-Free Environments Law Project
Smokefree
Apartment House Registry
Addresses the legal issues
Legal cases -- Courtesy of Leroy
J. Pletten, Ph.D.
The Crime Prevention Group, Sterling Heights, MI 48313
(Note: These are long and sometimes unwieldy,
but contain some excellent data)
Smoking
At Condominiums/Apartments: What The Law Really Says
Common Law -
"Fresh and Pure Air" Cases
Sample petition to submit to
Condo Association
WISH, August 2001
