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COMMON LAW/STATE LAW CLAIMS FOR TENANTS EXPOSED TO DRIFTING SMOKE

COMMON LAW/STATE LAW CLAIMS FOR TENANTS EXPOSED TO DRIFTING SMOKE. Kathleen Hoke Dachille Legal Resource Center for Tobacco Regulation, Litigation and Advocacy University of Maryland School of Law 500 West Baltimore Street Baltimore, Maryland 21201 (410)706-1294 phone; (410)706-1128 fax

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COMMON LAW/STATE LAW CLAIMS FOR TENANTS EXPOSED TO DRIFTING SMOKE

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  1. COMMON LAW/STATE LAW CLAIMS FOR TENANTS EXPOSED TODRIFTING SMOKE Kathleen Hoke Dachille Legal Resource Center for Tobacco Regulation, Litigation and Advocacy University of Maryland School of Law 500 West Baltimore Street Baltimore, Maryland 21201 (410)706-1294 phone; (410)706-1128 fax kdachille@law.umaryland.edu www.law.umaryland.edu/tobacco

  2. AN OUNCE OF PREVENTION . . . 79% of non-smokers prefer smoke-free buildings. Preferences and practices among renters regarding smoking restrictions in apartment buildings; Tobacco Control 2003; 12:189-94. From the outset, tenants should demand smoke-free clauses/covenants in leases. Landlords have the power to adopt and enforce comprehensive smoke-free policies.

  3. WHEN DRIFTING SMOKE CREATES A PROBLEM FOR A TENANT STEP ONE: Take “non-legal” steps to address problem: • Talk with the “offending” neighbor. • Talk with the landlord about: • Controlling visitors’ smoking in certain areas; • Limiting other tenants’ smoking; • Moving you or the “offender” to a different and more appropriate area of the building. • Request that management take practical steps to limit incursion of smoke, such as sealing all areas of entry into apartment (heating pipes, kitchen drain pipe and exhaust fan, electrical outlet/breaker box, windows/doors, etc.). ONLY MOVE TO LEGAL STEPS IF CANNOT RESOLVE AMICABLY WITH LANDLORD AND/OR OFFENDING TENANT.

  4. PRELIMINARY STEPS TO LEGAL ACTION • READ THE LEASE and related documents, looking for specific smoke-free clauses or general clauses promising a clean, safe environment. • NOTIFY THE LANDLORD IN WRITING of your complaints, including details as to the impact on you and your family. • DOCUMENT YOUR EXPOSURE to ETS with witnesses to the smell and visible presence of the smoke as well as how one feels in the environment; use a test to measure ETS levels if possible. Keep track of severity and duration. Details are important. • DOCUMENT ATTEMPTS AT REMEDIATION OR RESOLUTION, such as efforts at sealing areas of entry and discussions with landlord and offender.

  5. NUISANCE “A condition or situation (such as a loud noise or foul odor) that interferes with the use or enjoyment of property.” Black’s Law Dictionary (7th ed. 1999). A nuisance gives rise to a cause of action when the interference is unreasonable. A nuisance claim may be filed against: • Offending tenant; or • Landlord (so long as there is substantial impairment of enjoyment of property and remedy is within landlord’s control).

  6. BREACH OF WARRANTY/COVENANT OF HABITABILITY (OR SAFE PREMISES) “In a residential lease, a warranty from the landlord to the tenant that the leased property is fit to live in and that it will remain so during the term of the lease.” Black’s Law Dictionary (7th ed. 1999). To determine whether drifting smoke has caused a breach, must examine: • Materiality (Is the exposure in a living area? How much of the apartment is affected?) • Severity/Seriousness (What levels of ETS are measured? How intense is the smell? Any immediate health consequences?) • Duration/Frequency (How often is incursion—daily, occasional? Worse at night/day?) CAUSE OF ACTION IS AGAINST THE LANDLORD.

  7. REMEDIES EQUITABLE: • Injunction/Order preventing “offender” from smoking generally or in specified areas; requiring landlord to prohibit smoking by other tenants and visitors generally or in certain areas. • Release from terms of lease. MONETARY: • Difference between rent paid and “fair value” of property considering nuisance/breach; • Higher rent paid at new location if moved (reasonableness standard); • Moving expenses if moved (reasonableness standard); • Cleaning of apartment, including furniture, carpeting, window treatments, clothing, etc. (reasonableness standard).

  8. CONSTRUCTIVE EVICTION “A landlord’s act of making premises unfit for occupancy, often with the result that the tenant is compelled to leave.” Black’s Law Dictionary (7th ed. 1999). If the tenant leaves premises or part of premises, tenant can defend landlord’s claim for unpaid rent or can sue for return of security deposit (and perhaps moving expenses) based on constructive eviction. If the constructive eviction is due to the actions of others (tenants/visitors), tenant must prove smoke materially and unreasonably disturbs and substantially interferes with tenant’s beneficial use and enjoyment of the property.

  9. HURDLES/CHALLENGES • May be difficult for layperson to prepare pleadings; • Proof of ETS incursion can be difficult/costly, particularly if alleging health-related claim; • Not established in courts that nuisance, breach of warranty of habitability or constructive eviction can be based on drifting smoke. END

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