The Federal Fair Housing Act addresses the problem
secondhand smoke in multi-family housing when breathing is affected...
No one should have to choose between their home and their health.
Apartment management companies and condominium associations owe a duty of
care to insure that housing for their residents is habitable.
According to the San Antonio, Texas office of Housing and Urban
Development not only are ALL apartment communities, regardless of
government funding or not, required to abide by the Fair Housing Act
but under the law if someone has a breathing problem, and a statement
from their doctor, management is required to move the person who smokes to
another unit in order to accommodate the person with this disability.
Here is the contact information:
Center, Suite 405
106 South St. Mary's Street
San Antonio, TX 78205
Fax: (210) 472-6804
TTY: (210) 475-6885
Additionally, all apartment leases have a nuisance clause. If management
is choosing to require some residents to abide by this rule and not others
this shows a prejudice, especially when it is ignored as pertaining to a
handicapped person (i.e. one with an established medical breathing problem).
The Smoke-Free Environments Law Project in Ann Arbor, Michigan has
provided an enormous amount of legal information pertaining to this subject.
Environments Law Project
The Center for Social Gerontology
2307 Shelby Avenue
|Ann Arbor, MI
The following information can be found at
THE FEDERAL FAIR HOUSING ACT AND THE PROTECTION OF PERSONS WHO ARE
DISABLED BY SECONDHAND SMOKE.
Infiltration of Secondhand Smoke into Condominiums, Apartments and
Other Multi-Unit Dwellings
In April, 2004, the Tobacco Control Legal Consortium, of which the
Smoke-Free Environments Law Project (SFELP) is a founding member, published
a "law synopsis" of the above title which discusses legal remedies available
to tenants and landlords concerned about secondhand smoke infiltration. The
article was written by SFELP Consulting Attorney Susan Schoenmarklin and can
be accessed, in pdf format, by going to
The Federal Fair Housing Act [the following excerpts are taken from
the above-mentioned Web site]
A tenant or condominium owner who is sensitive to tobacco smoke may
be able to use the federal Fair Housing Act (FHA) to obtain relief from
secondhand smoke infiltration. The FHA prohibits discrimination in
housing against, among others, persons with disabilities, including
persons with severe breathing problems that are exacerbated by
secondhand smoke. The FHA applies to virtually all rental and
condominium housing, with the exception of single family housing rented
without the use of a broker and condominiums with four or fewer units.
The Smoke-Free Environments Law Project of the Center for Social
Gerontology is an excellent resource for more information on the
application of the FHA to secondhand smoke infiltration. The Centerís
materials are posted at
In a 1992 analysis, the General Counsel of the U.S. Department of
Housing and Urban Development concluded that persons suffering from
Multiple Chemical Sensitivity Disorder (MCS) and Environmental Illness (EI)
could qualify as disabled under the Fair Housing Act. According to the
analysis, MCS and EI include secondhand smoke-related illnesses and
Nevertheless, simply showing an adverse health reaction to secondhand
tobacco smoke is insufficient. To use the FHA, the affected person
must prove such adverse health reaction substantially limits one or more
major life activities. To be "substantial" the Infiltration of
Secondhand Smoke impairment must be severe and long-term. A substantial
impairment could include difficulty breathing or other ailments, such as
a cardiovascular disorder, caused or exacerbated by exposure to
secondhand smoke. For a person who suffers from such health effects,
secondhand tobacco smoke may pose as great a barrier to access to or use
of housing as a flight of stairs poses to a person in a wheelchair.
|In the 1991 Massachusetts
case Donath v. Dadah, a tenant sued her landlord alleging
negligence, nuisance, breach of warranty of habitability, breach of the
covenant of quiet enjoyment, intentional infliction of emotional
distress and battery due to secondhand smoke exposure. The plaintiff
asserted secondhand smoke from the second floor of the building in which
she lived caused asthma attacks, difficulty breathing, wheezing,
prolonged coughing, clogged sinuses and frequent vomiting. The plaintiff
moved out of the apartment shortly after filing suit, and settled for an
undisclosed sum of money in December 1992.
|In the 1992 Oregon case Fox
Point Apt. v. Kipples, a tenant who was sensitive to secondhand smoke
successfully argued that her landlord breached his duty to make her
apartment habitable by allowing a smoking tenant to move into the
apartment below her. The plaintiff suffered swollen membranes and
respiratory problems as a result of the secondhand smoke. A jury
unanimously found a breach of habitability, reduced the plaintiffís rent
by 50 percent and awarded damages for the plaintiffís medical bills.
Landlords not only have the right to prohibit smoking, but in fact
may also be liable under a variety of legal theories for failure to
prohibit smoking when a tenant is affected by secondhand smoke. A tenant
may take action against a landlord using common law remedies, state or
local health and safety codes, or the federal Fair Housing Act.
The first step in any dispute, of course, is to try to resolve the
issue without legal action. In addition, the resident should
review the lease to determine whether there is a "nuisance clause" that
prohibits activities that "unreasonably interfere" with other residentsí
enjoyment of the premises. Most leases contain such a provision, which
arguably would apply to smoking if the resulting secondhand smoke causes
others discomfort or health problems.
In all states, even if landlords are not at fault for a problem, they
are responsible for ensuring that residential rental properties are fit
for human occupancy. The landlord in effect makes a warranty of
habitability to the tenant for the life of the lease. The
plaintiff in a secondhand smoke case would argue that the presence of
secondhand smoke renders his or her residence unfit for habitation and
constitutes a breach of the lease. The more secondhand smoke exposure
affects the plaintiff, the stronger the argument that secondhand smoke
is a breach of the warranty of habitability.
In another case, a court held that a landlord breached the covenants
of both habitability and quiet enjoyment. The covenant of quiet
enjoyment protects a tenant from serious intrusions that impair the
character or value of the leased premises. In the 1998 Massachusetts
case 50-58 Gainsborough St. Realty Trust v. Haile, the Boston
Housing Court held that secondhand smoke was a serious enough intrusion
to breach both the covenant of quiet enjoyment and the covenant of
habitability. The plaintiff, whose apartment was situated above a bar,
withheld rent for three months because of the drifting secondhand smoke
in her apartment. The judge ruled that the amount of smoke from the bar
made the apartment "unfit for smokers and nonsmokers alike."
In the case In re HUD and Kirk and Guilford Management Corp. and Park
Towers Apartment, HUD approved as a "reasonable accommodation" a
conciliation agreement in which an existing building was made smoke-free
for future tenants. Current smokers were asked if they would be
willing to relocate elsewhere in the building to make more areas of the
apartment building smoke-free.
The problem of secondhand tobacco smoke penetrating into adjoining units
is not only a serious health problem, but it is a problem that cannot be
simply dismissed. Management assumes a high amount of risk regarding
secondhand smoke and all non-smoking residents based on the known facts of
its dangers. I assisted one single mom with a newborn baby that began severe
respiratory problems, coughing and choking, after a man who smoked inside
his apartment moved in below her. After speaking with the attorney for the
apartment owner they moved the smoker to a unit next to another smoker, and
declared the units around hers smoke-free.
An expectant momís unborn child can be in danger due to the motherís
breathing tobacco smoke in her apartment that comes from a different unit in
her building. If a resident has heart disease he or she can be at risk of a
heart attack, and if someone has cancer their chemotherapy can be nullified
by the smoke. Due to the number of asthma cases diagnosed every year, it is
an absolute fact that they will rent to many other residents with asthma,
including children. Will management plan to tell every person, or parent of
a child with a serious illness exacerbated by the unwanted tobacco smoke
that they must live with it? There is too much information and research now
to assume this problem can be ignored, and renters are no longer accepting
that answer. The 2006 Surgeon Generalís Report speaks at length to the
dangers of secondhand smoke in apartments and condominiums.
Management expects all residents to abide by the lease contract. It is
just as important that management do the same by informing current and
potential residents that smoking will no longer be permitted inside the
apartments and in all common areas connected to the building where
non-smokers live in order to protect their health.
12274 Bandera Rd., Ste. 210, Helotes, Texas 78023-4385
(9AM to 8PM Monday - Saturday Central Time Zone)
Fax: (210) 695-6101