Coping With Smoking
PROPERTY DAMAGE & LIABILITY
by Esther Schiller
APARTMENT OWNERS NEWS - WWW.APARTMENTOWNERSNEWS.COM
- AUGUST 2000
An apartment owner recently shared with me the fact that after
ten years of rental to a chain smoker, the apartment walls, window
and ceilings had to be totally replaced.
In the apartment of a person who smokes, at the very least, secondhand
smoke can cause permanent damage to rugs and drapes. The over 4,000
chemicals in secondhand smoke cover the walls and other exposed
surfaces, as well as the ventilation system with a dirty, yellow
residue. Even after the most energetic scraping, cleaning and painting
in some apartments which have been smoked in, the smell of smoke
residue never quite disappears.
Is it a legitimate business interest to prevent this kind of property
destruction? Does an apartment owner have the legal right to designate
all or part of an apartment building as smokefree, including the
individual units? The answer is yes.
Former Michigan Attorney General Frank J. Kelley, quoted in the
Detroit News, May 5, 1992, stated that owners may refuse
to rent to people who smoke, and that they can restrict people who
smoke to certain buildings within their complexes without violating
federal and state anti-discrimination laws. In the same news article,
even tom Luria, a spokesperson for the Tobacco Institute, which
is funded by the tobacco industry, suggested that private business
owners have the right to determine what is best for their own property.
Project Sentinel, a rental housing mediation service in California,
agrees that smokers are not considered a category protected from
discrimination under fair housing laws, so a landlord can refuse
to rent to persons who smoke simply because they use tobacco products.
"The legitimate arguments that an owner can use are that smoking
adds maintenance expenses and damages carpets, drapes and paint."
Project Sentinel points out that "to date no court has specifically
upheld the landlord's right to limit his/her premises to nonsmokers
or to apply different rental terms and conditions (such as a larger
deposit) to smokers." However, they conclude that "since
smoking is a habit and not an inherent status like gender or ethnicity,
it is doubtful that the law would protect smokers." (Los
Angeles Times, March 2, 1997).
Some apartment owners have already chosen to have smokefree buildings.
In Washington, an apartment owner, who owns a number of residential
units, has enforced a smokefree rule for twenty years. Another owner
had a totally smokefree policy until she retired recently and sold
her properties. This woman owned twenty units which were smokefree,
beginning in 1980. She began the policy after several years of renting
during which she had problems with smoking, including burned carpets.
But she states she was worried about more that minor damage. She
says, "The reason I kept my buildings smokefree is that smoking
is a major cause of fire fatalities." According to a New York
fire marshal, tobacco-related fires kill about 1,500 Americans each
year, seriously injure about 4,000, and cost about $400 million
in property damage.
The owner would have her prospective tenants acknowledge in the
month-to-month rental agreement or in the lease that they and other
occupants of the rental unit do not and will not smoke. They agree
that their visitors will not be permitted to smoke, they will move
in thirty days. In addition, she advertised her rentals as smokefree.
What if an Owner Wishes to Make a Transition
to a Smokefree Building?
The case of U.S. Department of Housing and Urban Development
(HUD) and Kirk vs. Guilford Management Corporation and Park Towers
Apartments in Illinois provides some guidance. Nancy K. had
a respiratory condition aggravated by her neighbor's secondhand
tobacco smoke which was entering her Park Towers apartment, a HUD-subsidized
high-rise for the elderly and the disabled.
Under the conciliation agreement approved by HUD in January, 1998,
Park Towers became smokefree, beginning with new tenants who moved
in on or after March 15, 1998. However, the no-smoking policy does
not affect current tenants. Violators of the no-smoking policy will
receive written warning letters to a violator within a one-month
period, eviction proceedings shall begin.
Are There Other Reasons to Consider Designating
All or Parts of Apartment Buildings as Smokefree?
Yes, to protect nonsmoking tenants from drifting smoke.
According to the Chief of the California Division of Occupational
Safety and Health, John Howard, "Tobacco smoke travels from
its point of generation in a building to all other areas of the
building. It has been shown to move through light fixtures, through
ceiling crawl spaces, and into and out of doorways."
Because of our state's Smokefree Workplace Law, most Californians
are no longer breathing secondhand smoke where they work, or in
restaurants and even bars and casinos. If they come home to their
apartment and find the smell of tobacco smoke dirtying their air,
they are understandably upset.
According to the California Environmental Protection Agency, which
released an eight volume study of secondhand smoke in 1997, secondhand
smoke is a direct cause of lung cancer, nasal sinus cancer, hear
disease, and sudden infant death syndrome.
Do Apartment Owners Have the Responsibility
to Protect Their Tenants From Drifting Secondhand Smoke?
Again, the answer is yes.
Tenants have sued on the basis of nuisance, breach of the common
law covenant of quiet enjoyment, breach of statutory duty to keep
the premises habitable, negligence, harassment, battery, and intentional
infliction of emotional distress.
In one of the first cases in 1991, a Massachusetts woman sued her
landlord because she was constantly exposed to the secondhand smoke
of another tenant. She suffered asthma attacks prolonged coughing,
clogged sinuses and frequent vomiting. That case was settle for
an undisclosed amount of money in 1992 (Donath vs. Dadah).
A year later, a landlord in Oregon was sued by a tenant who was
affected by cigarette smoke from another tenant who lived directly
below. A six person jury unanimously found a breach of habitability,
reduced the tenant's rent by 50 percent, and awarded her payment
to cover her doctor's bills, Fox Points Apts. vs. Kippes.
More recently, in 1998, a couple in Boston moved into an apartment
over a bar and then discovered that smoke from the bar was seeping
into their apartment. According to an Associated Press article which
reported their plight, Kristy H. said that as a result of the smoke,
she was diagnosed with smoke-induced asthma.
The couple withheld three months of their rent and the landlord
then began an eviction process. But the process came to an abrupt
halt when Boston Housing Court Judge E. George Daher ruled that
secondhand smoke was a health threat that interfered with Kristy
and her husband's right to "quiet enjoyment" of their
apartment. The court awarded the couple $4350 in damages because
the landlord did not prevent smoke from the downstairs bar from
entering their apartment.
People Who Smoke Need to Be Able to Rent
Apartments. And People Who Don't Smoke and Don't Want to Breathe
Secondhand Smoke Need to Be Protected.
The state of Utah passed a law in 1997 that begins the process
of regulating the secondhand smoke problems which can result between
landlords and tenants as well as tenants and tenants.
The Smokefree Apartment Housing Registry is an attempt to begin
addressing this problem in California. The Registry acts as a clearinghouse
for landlords with smokefree apartment buildings and prospective
tenants seeking smokefree housing. If you currently own or manage
a smokefree apartment building or complex, please consider listing
your building with us. Our Website: www.smokefreeapartments.org,
has just become available on the Internet.
Because vacancies are rare in smokefree buildings, and mangers
do not appreciate being deluged with phone calls when there are
no vacancies, we do not list phone numbers on the Web page until
a vacancy is available.
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