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 Center’s 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 disorders.

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.

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 residents’ 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.