Second hand Smoke Now a Nuisance

In September 2005, the California Environmental Protection Agency (“CEPA”) publicly confirmed a report by the California Air Resources Board that links tobacco smoke to a variety of health effects ranging from asthma, Sudden Infant Death Syndrome (“SIDS”), and increased incidences of breast cancer in non-smoking women.

The report cites new evidence that, according to the Office of Environmental Health Hazard Assessment (“OEHHA”), confirms that secondhand smoke is likely to cause serious health problems with non-smokers. “Secondhand smoke is more than just an annoyance. The scientific record is increasingly clear that smokers are putting their families and friends at risk if they regularly smoke in their presence,” said Dr. Joan Denton, Director of OEHHA.

According to CEPA, in California each year, tobacco smoke is responsible for the release of 40 tons of nicotine, 365 tons of respirable particulate matter, and 1907 tons of carbon monoxide. What do all of these findings mean to landlords?

California law requires landlords to keep their tenants safe from foreseeable harms. In recent years, the courts have awarded tenants damages for personal injuries that occur on the property, as well as for criminal acts committed in or around the apartment building. Responsible owners now make sure that their properties are safe, clean, well lighted, and free from known dangers. But should smoking be in the same league as gates, common area lighting, and good locking devices? In light of current scientific findings, probably.

Traditionally, a tenant was allowed to smoke in the unit. Yet a lease may prohibit smoking in the unit and/or in the building. Such a prohibition is lawful. In rent controlled jurisdictions, a landlord may not be able to unilaterally impose a prohibition against smoking inside a unit where the existing rental agreement contains no such a rule. In addition, when a “service” such as smoking is withdrawn, the tenant could petition the local rent board for a decrease in services and potentially receive a rent reduction.

However, given the evidence in support of secondhand smoke’s dangers to other residents, landlords may at least want to prohibit smoking in all common areas. Such a prohibition serves the health and safety interests of the building residents and would most likely comport with the local rent regulations. Landlords should also consider prohibiting in-unit smoking for all new tenancies, and leases such as the PPMA Rental Agreement contain such a covenant.

What happens when a tenant, who is allowed to smoke in the unit, causes secondhand smoke to permeate common areas or, more alarmingly, an adjacent unit? Some practitioners have used such an intrusion to terminate the tenancy if the offending tenant refuses to stop puffing.

Under state and local law, a tenancy may be terminated if the tenant commits a “nuisance.” A nuisance is defined as an act injurious to health or indecent or offensive to the senses, or that which interferes with the comfortable enjoyment of property by others.

The CEPA report stands as a testament to the offensive nature of secondhand smoke. Even if a lease allows smoking inside the unit, if the smoke trespasses into another’s unit, or the common areas, the smoking tenant is probably liable for committing a nuisance. In fact, the landlord could face problems for failure to abate the nuisance if another tenant is injured as a result of the secondhand smoke. Imagine the claim a pregnant tenant could make for being exposed to this toxin.

Another problem for owners arises from tenant exposure to secondhand smoke in buildings that contain ground floor restaurants/bars where patrons frequently light up, either inside the premises or on the sidewalk. Management may not be able to stop in the offending activity in these circumstances. According to OEHHA, secondhand smoke increases the chances of premature and low birth-weight babies, SIDS, bronchitis, pneumonia, and the induction and exacerbation of asthma, as well as middle ear infections in children. Surely the list of harms to babies and children will be expanded in the near future. Given these findings, landlords may want to disclosure, in writing, the existence of tobacco toxins to prospective tenants so that future and current parents can appreciate the health risk of renting above the local saloon. Such forthrightness may keep the unit on the market longer but save the owner from an expensive lawsuit.

So, in conclusion, be aware of the dangers posed by secondhand smoke. Consider eliminating smoking in your building, and consult with a qualified attorney to determine how to quash this danger before a claim can be made against you.

DW