Smokefree Market Rate and Private Multi-Unit Housing
Owners experience Economic Benefits with Smokefree Units.
The American Apartment Owners Association publishes several blogs in favor of creating smokefree policies. Click on the following to read:
- How to Draft a Non-Smoking Lease Agreement (published January 6, 2011)
- More Pressure on Landlords Over Smoking Policies discusses the advantages of smokefree housing policies (published December 13, 2010)
- Renters Willing to Pay More for Nonsmoking (published November 13, 2010)
- Battle For Smoke-Free Apartments Heats Up (published March 12, 2009)
- Clearing the Air: Smoke-Free Apartments (published August 10, 2008)
Read Smokefree Rentals May Be Billowing Trend, a June 21, 2013 Real Estate Report from NY1.com about the Related Management Companies' decision to ban smoking in all of its 40,000 rental units around the country. Tenants are required to sign the policy as part of their lease or renewal. As demand for smoke-free housing grows, large residential companies are increasingly moving toward adopting rules that prohibit smoking in apartment units as well as building common areas. See the article on NYC Coalition for a Smoke-free City's website about Related's policy. Read a November 2010 news article about a trendy "green" smokefree apartment building and about the demand for smokefree apartment buildings in Rockville, MD.
Read the Tobacco Control Legal Consortium 2009 publication Infiltration of Secondhand Smoke into Condominiums, Apartments and Other Multi-Unit Dwellings. There are 3 sections to the document:
- Section I explains the right of landlords, condominium associations and public housing authorities to prohibit smoking in individual units.
- Section II provides solutions for private individuals if secondhand smoke is seeping into their dwellings from neighboring units.
- Section III discusses enforcement concerns expressed by landlords and the advantages of specifically addressing smoking in a lease. This section also provides smoke-free language to use in a lease or in condominium bylaws.
Read the August 14, 2008 response to an editorial question from a New Jersey landlord interested in finding out their options on implementing smokefree policies in their multi-unit dwelling. The question was prompted by a nonsmoking tenant who was getting smoked out of their unit.
Read the November 2009, article about a newly-constructed New York City residential rental building on the Upper West Side that is the first to ban smoking in all units as well as public spaces. Since then, other apartment buildings that are newly built or rehabbed have implemented 100% smokefree policies.
Read Options for Condo Owners Suffering from Drifting Secondhand Smoke, published in June, 2009 by Change Lab Solutions, a California based non- profit organization that provides legal information on matters relating to public health.
Petuluma, CA city council passed an ordinance to ban smoking in apartments and other units of multi-family dwellings as well as hotels and motels. The ordinance will take effect on August 1, 2013 for buildings still under construction and on January 1, 2014 at existing housing units, hotels and motels. Read a Bay area KGO810 news story or read the the ordinance.
City Campaigns to Promote Smokefree MUH
In December 2010, the New York City Department of Health launched its new ad campaign alerting parents to the dangers that secondhand smoke poses to children. Read the press release and view the television ads on their website, which also discusses the Department's Community Annual Health Survey of 10,000 adult residents in 2008. Key survey results are:
- Approximately one in five non-smoking adults (18%) is exposed to secondhand smoke at home. Exposure is comparable among men and women.
- Exposure at home among non-smokers is more common among adults ages 18 to 24 years than older adults (28% vs. 16%).
- Black and Asian non-smokers are more likely than whites to be exposed at home (21% vs. 15%); rates are also higher in those with a high school education or less (21% vs. 14%).
- A survey of new mothers in New York City found that over 3,700 mothers reported that their infants were exposed to secondhand smoke indoors.
Choose Smokefree Housing is a brochure published by Northwest Tobacco-Free Partnership to help tenants in Washington State resolve secondhand smoke migrating into their units.
New York state has a website for tenants to find registered smokefree housing around the state.
Condominiums and Cooperatives Create Smokefree Policies
Concern over health and the environment as well as complaints by owners of secondhand smoke problems is leading to more discussions by coop and condo boards of the feasibility of smokefree policies. Read this June 2012 article from The Cooperative about the smokfree policy debates occurring by boards in this type of private housing. Condo boards can amend the bylaws to prohibit smoking by renters. Read the answer to the question about renting a private unit to a smoker in the The New York Times. Also noted is that most condo bylaws forbid unit owners to allow odors to emanate from their apartments (such as secondhand smoke).
Read the article in the Fall 2013 issue of Mid-Atlantic Real Estate Journal about smokefree properties and a landlord's legal obligation when confronted by a smoking complaint. GASP was mentioned as a resource for third-hand smoke. The author, a partner with a West Orance, NJ based law firm, explains,
"In some states like New Jersey, if the smoke is emanating from one unit into another, and interfering with the "peace and quiet" of others, the landlord is obligated to take steps to remedy the situation. It is important to note that residents who smoke do not have the absolute right to do so in their private apartment if it interferes with the enjoyment of others."
New York Mayor Michael Bloomberg has proposed legislation that would require residential buildings to adopt written policies on where smoking is permitted or prohibited and disclose those rules to prospective tenants and owners, a move that officials predict could increase the number of smoke-free apartment buildings in New York City. Read this April 18, 2012 Wall Street Journal article.
Read this March 6, 2013 New York Law Journal publication which talks about the legal trend in New York to hold landlords, including co-op boards, accountable for remediating pervasive second-hand smoke.
The board of an upscale high-rise in Brooklyn implemented a no-smoking policy for the building, including all units but excluding individual private terraces. Read a December 24, 2012 news article from the New York Post.
On April 12, 2012, The Real Estate Board of New York issued a press release of their proposed guidelines for implementing no-smoking policies for inside co-op and condo apartments. Read a Habitat Magazine article written by two condominium-law attorneys as a practical guide for implementation. Also, read two Brick Underground articles 13 NYC apartment buildings that have totally banned smoking and Does it pay to live in a non-smoking building? NYC renters are also finding it hard to find a smoking-permitted apartment. Read a New York Times article from May 21, 2012 about the increased difficulty smokers face finding rental units as more landlords and tenants embrace smokefree policies.
In June 2010, The New Jersey Cooperator - The Condo, HOA and Co-op Monthly, published A Burning Issue: Smoking Bans in Private Apartments. As of 2012, there are several condo associations in NJ that have restricted smoking inside private units.
Read a March 21, 2012 Boston Globe article about the largest condo building in Boston voting to amend its bylaws to be smokefree. Visit the Boston Public Health Commission's website for Smokefree Properties with a wealth of information for condominium owners who are interested in making their property smokefree. Condominiums and cooperatives are creating legal 100% smokefree policies:
- Read an American Bar Association article, Butt Out! Controlling Environmental Tobacco Smoke in Condos, published by Probate & Property, Vol. 22, No.3, May/June 2008.
- In 2006, the Tobacco Control Legal Consortium published Legal Options for Condominium Owners Exposed to Secondhand Smoke, a discussion of legal options available to a condominium owner exposed to drifting secondhand smoke from a neighboring condominium unit.
- A July 2008 Portland Oregon tenant survey found that 46% said they "would not be comfortable renting an apartment where adjacent tenants smoke". Here is an editable blank tenant survey used by the Crow Hill Condos in Alaska to determine the feasibility of going smokefree.
Smoking can reduce the property value of a home up to $25,000, as reported by Bankrate.com. This April 2010 story states that, "smoking is the habit that will have the most dramatic effect on your ability to make the most of the sale of your house." A leading cleaning service company shared that with bankrate.com: "[T]here is nothing more expensive to eliminate than the traces of cigarette smoke... Any amount of smoking will do some damage, but the amount varies." ... Hiring a professional to wash everything in an average-sized home costs around $1,500 and to seal and paint will cost another $6,000.... If you were to revamp a house to put on the market for a really heavy smoker, it could cost you around $25,000."
Read a 2006 magazine article from a NYC co-op that voted to impose a 100% smokefree policy for its building. Also in 2006, a Colorado District Court ruled that a Heritage Hills Condominium Owners Association was within their rights to amend their Declaration of Covenants that "no nuisance shall be allowed upon the property... that is a source of annoyance to residents or which interferes with the peaceful possession and proper use of the property of its resident." The court ruled that the Declaration applied throughout the property, including the private units, and that secondhand smoke in their fact-specific situation was classified as a nuisance.
On the other hand, on May 26, 2011, the New York appellate court reversed a Manhattan judges 2009 decision that had ruled in favor of the non-smoking condo owner of a luxury TriBeCa building at 200 Chambers Street. The case was brought by non-smoking condo owners, against their neighbors who smoke, which caused health problems for the plaintiffs' daughter. The appellate division found that the plaintiffs' nuisance complaint failed because secondhand smoke is merely "an annoyance" and there was no condo bylaw prohibiting smoking in individual units. The second cause of action of negligence failed because the plaintiffs did not file complaints about the ventillation system against the condo board. Read the court ruling. Read news articles one and two from the December 2009 case rulings prior to the appeal.
Courts continue to see lawsuits pitting non-smokers against smoking neighbors. Read this January 2012 news article from the Washington Post. Read this May 2012 news article about a couple in British Columbia awarded $8000 from a human rights complaint they filed because they were unhappy with their strata's (condo's) response to numerous complaints about the cigarette smoke wafting up from the suites below.
Read a March 12, 2013 news article about an Orange County, CA jury that awarded a non-smoking family more than $15,000, finding the condo assocation and management failed to ensure their right to the "quiet enjoyment" of their condo when their neighbor's smoke continued to infiltrate their unit.
Read about the February 2011 case in which the federal district court judge ruled that a tenant was justified in breaking her lease four months early and moving out after complaining repeatedly to the landlord about the problem of secondhand smoke coming from a neighboring apartment.
Read the Tobacco Control Legal Consortium 2009 publication Infiltration of Secondhand Smoke into Condominiums, Apartments and Other Multi-Unit Dwellings. There are 3 sections to the document:
- Section I explains the right of landlords, condominium associations and public housing authorities to prohibit smoking in individual units.
- Section II provides solutions for private individuals if secondhand smoke is seeping into their dwellings from neighboring units.
- Section III discusses enforcement concerns expressed by landlords and the advantages of specifically addressing smoking in a lease. This section also provides smoke-free language to use in a lease or in condominium bylaws.
A 2008 publication from Public Health Law and Policy in California describes 3 different options to make a condominium complex smokefree.
To learn more about the legalities of no smoking policies for cooperatives, go to Smokefree Housing Ontario.
Note: The information presented on this website is not intended as, nor to be construed or used as, legal advice, and should not be used to replace the advice of your legal counsel.
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