COMMON LAWSTATE LAW CLAIMS FOR TENANTS EXPOSED TO DRIFTING SMOKE

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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
• [phone] phone [phone] fax
• kdachille_at_law.umaryland.edu www.law.umaryland.edu/
  tobacco

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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 12189-94.
• From the outset, tenants should demand smoke-free
  clauses/covenants in leases.
• Landlords have the power to adopt and enforce
  comprehensive smoke-free policies.

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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.

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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.

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NUISANCE

• A condition or situation (such as a loud noise
  or foul odor) that interferes with the use or
  enjoyment of property.
• Blacks 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 landlords control).

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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.
• Blacks 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
  incursiondaily, occasional? Worse at
  night/day?)
• CAUSE OF ACTION IS AGAINST THE LANDLORD.

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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).

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CONSTRUCTIVE EVICTION

• A landlords act of making premises unfit for
  occupancy, often with the result that the tenant
  is compelled to leave.
• Blacks Law Dictionary (7th ed. 1999).
• If the tenant leaves premises or part of
  premises, tenant can defend landlords 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 tenants
  beneficial use and enjoyment of the property.

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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