Smoke-Free Housing Consultants

 

                                        Smoke-free Apartment & Condominium Buildings!
                                        A Breath of Fresh Air - The Amenity That Saves Lives.
 
Updated:  May 1, 2008


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Apartment Owners/Managers                      Residents / Renters
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Jacque Petterson,
Your Smoke-Free Housing Consultant


If you have questions concerning secondhand smoke or other smoking-related concerns regarding multi-family or single family housing, please check through the Q&A below and on the link at the bottom of this page. If you do not find the answer forward your question to me, at jacque@S-FHC.com
(be sure to reference "Smoking in apartments" in the subject line) or by mail to 12274 Bandera Rd. Ste., 210, Helotes, Texas 78023-4385.

Imagine being told you have no right to live
in a smoke-free home.
It happens every day in apartments and condominiums.

When renting an apartment or buying a condominium,
be sure to ask for a smoke-free building.

Warning!
Tobacco smoke does not stay
in the smoking residents apartment.
It enters and fills all the other
apartment homes in the building.


Find information about smoke-free apartments in your area?
 

Q & A

How do I prove smoke is coming into our office from an apartment downstairs?

Q.  We have an office that was a residential home. Another nail/clinic hair salon connects to the other side. Both employees smoke outside in the front of the building. This office has been there for over 20 years. There is an apartment below and in the back. A recent new hire has taken off work complaining of cigarette smoking coming in from the bottom apartment. I do not smell the tobacco smoke, other than the two employees when they are outside. She insists that the tobacco she says is affecting the work environment is coming from the downstairs (basement) apartment. I do not know how she has come to that conclusion. She has been our employee for two months. Is there any detecting device that can measure/detect the amount of nicotine in the room? Any comments or suggestions will be appreciated. Thank you

A.  I am glad you contacted me rather than just writing off the employee's concerns. It is very common for someone with health problems exacerbated by tobacco smoke to notice it when others do not. Just as an example, I have asthma and my husband and I purchased a condo only to find out the renters below smoked inside. Neither my husband, nor his family members that visited, ever smelled the smoke, but it affected my breathing to the extreme - even sending me to the emergency room. We were forced to move and sell that home.

There are a very large number of organizations working on this problem all over the U.S. and at least five other countries. Within that group are a number of professionals trying to find a way to "prove" the problem exists. It only takes a minute amount of tobacco smoke to cause a health problem. The particles are very fine and embed in the lungs, getting into the blood stream. Because it only takes a tiny amount to do serious damage we are finding it difficult to actually "prove" it. Just the fact that so many are working on this is the only statement I can give you at this time that explains the problem is very serious and common.

We do know that tobacco smoke cannot be contained inside even separately enclosed areas of any building. If air or water can seep through the walls so can the smoke. The smoke can travel through baseboards, electrical outlets, even sheetrock. Here are two quotes relating to apartment buildings, which apply to any building, that may help:

"I believe there is an enormous amount of pent-up demand for SF multifamily dwellings.  When I was at the EPA's Office of Air Policy Analysis, as long ago as 1980, smoke infiltration in MFDs  (multi-family dwellings) was the NUMBER ONE COMPLAINT we got from the public." 

James Repace, MSc., Biophysicist
Visiting Assistant Clinical Professor, Tufts Univ. School of Medicine, and REPACE ASSOCIATES, Inc.
Secondhand Smoke Consultants
101 Felicia Lane, Bowie, MD 20720, U.S.A.

"Air quality surveys in apartment buildings in Chicago revealed that 60% of the air in apartments comes from other units."

Diamond RC, Feustel HE, Dickerhoff DJ.  Ventilation and infiltration in high-risk apartment buildings.  LBL Report # 38103 p.4, UC 1600, March, 1996.

Here is a link to a statement from the California Air Resources Board noting the extreme dangers to health of even small amounts of the smoke from other parts of a building (apartments specifically noted). Here are links to lengthy scientific documents filled with a lot of helpful information and showing how convoluted is the process of "proving" the problem exists: http://cancercontrol.cancer.gov/tcrb/monographs/10/m10_2.pdf  / http://exposurescience.org/pub/reprints/Ott_EHP_1999.pdf

In order to protect your new employee, not to mention you and your other employees from developing breathing problems (I have seen this happen many times), your landlord would need to ban smoking inside the entire building, requiring all smoking to be outside and at least 50 feet from the building (50% of the complaints we get are from smoke being sucked back into buildings from nearby smoking). The landlord should know that it is perfectly legal to ban smoking inside an apartment, and that they risk a lawsuit, if not now - eventually, for allowing renters to contaminate the air for others in the building, causing or exacerbating potential serious illness. If they would like more information, please ask them to contact me.

A smoking tenant moved into the condo above me, and everything I own reeks.

Q.  Please help. A smoking tenant moved into the condo above me, and everything I own reeks. Please advise.

A.  I am so sorry you are in this situation. I'm afraid I am not going to give you the encouraging news you want to hear. You are probably stuck, with your only option as moving.

What it boils down to is, although we should have the right to a smoke-free home, outweighing someone else's right to smoke in theirs, the problem is we are not far enough along in education so the rest of the world understands this. If it hasn't happened to them they don't think it's a big deal.

There is no question this is a nuisance that infringes on your right to a healthy, safe home that you can enjoy (a paragraph in all CC&Rs). There is no question the smoke travels through the air space owned by the association. But getting the Board of Directors to understand and agree is another story.

About your only hope is to find enough people in the building that are also bothered by the smoke and go as a group to the next meeting requesting that the building be declared non-smoking, including inside the units. If your board has never heard of this, they will tell you they "can't" do that. I have attached to my email reply back to you enough information for you to copy for them to show they "can" do this.

Some condo associations that do agree to change the CC&Rs and make a smoke-free building choose to grandfather the smokers, but this is not necessary, and should not be done as the smoke is a very serious health risk for you. You will see in the article attached, "Judge finds shs a nuisance..." this building changed the rules immediately and it was upheld in court.

The BOD can, though, say they don't want to get involved, and it is between you and the smoking neighbor/homeowner. If you were to choose to sue the HOA (i.e. yourself) and lose, your CC&Rs probably state that you would then owe back all the legal fees (the reason my husband and I did not sue and my husband is an attorney). You can sue the neighbor, but again, be prepared for very high legal bills and little guarantee you will win. There have been condo owners that have tried this and lost "everything they owned". One ended up living in a low income apartment with smokers around him.

We are so far from getting the needed changes when it comes to this issue, but we are making progress. The City of Temecula, California recently passed an ordinance requiring all apartments to include a minimum of 25% contiguous smoke-free units. The City of Belmont, CA has just written an ordinance that will require ALL multi-family housing, including condos (excluding townhomes), to be 100% smoke-free within the next 18 months or so. They are expected to pass the ordinance in the very near future. You should contact your city council rep and state representatives to tell them about the problem and what these other cities are doing so they are made aware for future reference. One person, just like you, convinced the Belmont City Council to take action.

I have been in your shoes and was forced to sell a condo literally to survive due to my asthma. I loved our condo and still miss it today.

They smoke in our co-op hallways, stairwells and elevators.

Q.  Would you be able to tell me what my best course of action is for a Coop in New York City that allows smoking in hallways and stairwells and elevators. I am a tenant of an owner of the coop. I have told her about the smoking and she said she contacted the property manager but he doesn't get back to her. I contacted the coop sales and they said others had complained also. He put signs on every floor. They were taken down within two days. He said they would go back up. It's been two weeks and nothing. The smoking continues. It can be seen in the hallways as well as smelled. It smells up everything I own and takes over my apartment with the stench.

Rent is due in a few days. I don't want to be accused of not paying yet paying empowers my landlord to believe she doesn't have to do anything but call the property manager. 

The people also smoke in their apartments. It leaves burn marks on the wood floors in the living room and bedroom. I cleaned those marks off they are back again.

Thank you for any help.  Our 311 says to call 911

A.  I would advise you to pay the rent, but unfortunately if the owners of the building choose not to create smoking regulations, keep the signs up, and/or enforce a no-smoking rule you are in a bad position. You should also know that if you do not already have a respiratory problem made worse by the smoke (which can be life-threatening for some) you could actually develop asthma that can last the rest of your life. You really need to get out of there. If you have a lease that does not expire for some time I would look through it for a clause that states you are entitled to a healthy living environment. Maybe you can get a note from a doctor. I would definitely contact the local health department. You need to tell your landlord that you cannot live in a smoke-filled home and need to be released from your lease.

Here is an article on how co-ops are banning smoking in NY http://cooperator.com/articles/890/1/No-Ifs-AndsOr-Butts/Page1.html. This next article notes it may be illegal for people to smoke inside your hallways and other common areas http://query.nytimes.com/gst/fullpage.html?res=940DE7D8143FF934A3575BC0A96E948260 . If this is true for your area you may want to call the local police station (I would not use 911) and ask who would enforce the law. It may be the fire department or the health department. See how they can help.

You can also take the articles above to your co-op board and encourage them to create and/or enforce a no smoking rule.

You must know though that taking it out of the common areas will not stop the smoke from filtering from other private units.

My new apartment was previously rented to smokers. The landlord painted the walls and installed new carpet, but the smell is horrific.

Q.  I just moved into an apartment that was previously rented to chain smokers. The landlord installed new carpet and painted the walls (not the ceiling or the inside of the cupboards). I am a (outside) smoker, and even to me the smell is horrific!!! It feels thick on my skin, makes me gag, and has even woken me up at night. I have a 10 y.o. and a 1 1/2 y.o. and I am wondering if there is any health effect to my children, just from the smell alone? I set off a bomb that is supposed to get rid of smells from fires this morning (I will see how it works when I get home). But I am afraid that it won't get rid of the harmful gases that have permeated the walls and ceiling. Also, will the smell get into my food and on my dishes, and if so, is it harmful for us to digest? This whole situation and doing research on the internet has definitely inspired me to quit!!! Thank-you in advance for any information that you might have.

A.  I am so glad you are making an effort to do the research. I am currently co-writing an article for the National Apartment Association's magazine about smoking in apartments. Here is a paragraph from the article that explains the proper way to prepare a smoked-in unit before new residents move in.

Kennedy Restoration, a restoration maintenance company in Portland Oregon, in developing an estimate of the cost of cleaning a smoker’s apartment specified the need to replace carpeting and vinyl appliances as well as possible replacement of other flooring or sub-flooring, lighting fixtures, cabinets, and ceiling fans.  In addition, the company uses special sealants to control odor before painting.  The company estimated the cost of cleaning a two-bedroom, two-bath smoked-in apartment at approximately $15,000.

It is very unlikely your management company did all this before you moved in so your children are definitely ingesting the left over chemicals that are "outgassed". I don't believe you have to worry about the food and your plates, but the air quality is a real problem.

You should also be aware that even though you are smoking outdoors the chemicals are embedded in your clothing, hair and skin. When you come near your children they will be exposed to the same dangerous gases, along with what comes out of your lungs when you breathe. It is pretty much impossible to smoke and not cause a problem for your little ones. (Hope that, too, will give you a boost to quit.)

You are like many who smoke today in that you do not smoke inside your home and don't want anyone else's smoke in there, even from residents before you.

My neighbor is a retired man who has lived there for several years and is a severe chain smoker.

Q.  Hello, I recently moved to Colorado Springs to be stationed at Fort Carson. I am a Second Lieutenant in the Army and I just moved into a "loft style" apartment that I like very much. When I was shown this apartment it smelled of smoke and the leasing consultant told me that the previous owner smoked and that the apartment would be fumigated and the walls painted before I moved in. The day I moved in I immediately smelled the smoke. I went over to the management office and told them about the problem and they said they had had this problem before. They asked me if I smelled it around the bathroom areas, and I said yes (I smelled it everywhere as well). They explained that the maintenance staff would come over and remove the vanity cabinets, caulk the holes, and it would stop the smoke. The maintenance staff came over immediately and did that. It helped, but I could still smell smoke all through my apartment. I noticed that it smelled really bad by the vents for heating/cooling and where the air filter was located. The air filter is located in the ceiling which is really low. I also noticed when I turned on the heat or AC that it spread it even more throughout my apartment. Once again I told management and they sent the maintenance staff over. The maintenance staff told me that nothing else could be done. They did tell me however, and this was confirmed by management, that my neighbor is a retired man who has lived there for several years and is a severe chain smoker. The maintenance guy even told me that he could barely stand to be in his apartment.

I have had a dry throat, scratchy eyes, and my clothes smell of smoke since I moved in. I can't sleep at night because the smell bothers me. Last night I used cardboard and duct tape to cover the vents and filter area, but I was unable to turn on the heat as it was cold last night. This is getting ridiculous! I have lived in several apartment complexes all over the country given my job and this is the most difficult situation that I have encountered. I went over to the management staff today, and they started to give me an attitude because they were sick of hearing from me. They told me that we have reached an impasse and the way the apartments were built in the 1980's there is nothing they can do. They offered to move me to another apartment in the complex, I told them that I would be interested, but they said that the onus would be on me. I would have to pay for the moving truck and movers. This should not be my responsibility and I told them that. The complex manager said that she has been doing this 25 years and that there are no laws in Colorado to support me. I asked if they would contact the gentlemen who is a chain smoker and they said that they would. She said that it was illegal for her to ask him to stop smoking. I don't have the time and have run out of patience with this whole thing. I will be working long hours beginning next week. I will have the lives of many of my soldiers in my hands and I need to be alert, concentrated, and healthy. I do not want to move out of this apartment (it has a great view), and if I did, I should not have to pay for a thing. I need your help and/or advice. I need this to be resolved quickly. It is supposed to snow here on Friday and I will need the heat on. In my lease it says "PROHIBITED CONDUCT: You and your occupants or guests may not engage in the following activities: criminal conduct; behaving in a loud or obnoxious manner; disturbing or threatening the rights, comfort, health, safety, or convenience of others (including our agents and employees) in or near the apartment community" (paragraph 20). I would assume the chain smoking gentleman has the same lease. PLEASE HELP ME! Feel free to contact me at ANYTIME. Thank you very much for everything.

A.  I will start by saying the manager is wrong on many accounts. That said, the problem is getting you relief in a timely manner. I am so sorry you have to go through this. You are not going to like the answers as this is still such a new problem that it generally means the fight is on, and most apartment management companies will fight to the last breathe to not help you. They don't want to be bothered with smoking problems. Although occasionally we find management companies that understand and are willing to make the needed changes to protect their residents, they are few and far between. Based on the response you received, I believe the best you can do is get out of the lease, cut your losses and run. I can't even get newspapers to include articles on this problem to help educate renters so they know what questions to ask before they rent. Thankfully you will know in the future. I managed apartments for many years and was even certified by the National Apartment Assn., but had no idea this was a problem until 2000 when it happened to me after buying a condo over some who smoked. As we have gained smoke-free workplaces our lungs have cleared and we are more likely to recognize when smoke comes into our homes. You just may have been fortunate enough to have not lived next to someone who smokes until now.

Do you have any type of respiratory or heart problem that was previously diagnosed? If so, you would be considered handicapped under the ADA and Fair Housing Laws. If a HUD complaint were to be filed, and if you won the case, HUD would require they make the building smoke-free and stop the neighbor from smoking, but even this can take many months to accomplish. I am working on one now for a woman in Boulder, CO who has asthma and COPD with a smoking neighbor.

There are still, as you noted, the health and safety issues in the lease. But, if they choose to do nothing your only options will be to move or sue. The next problem is whether or not a judge would understand and acknowledge the problem.  Also, would the judge require "proof" that the smoke was in your apartment. We have found it difficult to prove. There have been a few recent cases where a judge has ruled in favor of the non-smoking resident and forced the landlord to make the building smoke-free. It sounds like getting the apartment manager to agree under PROHIBITED CONDUCT in your lease will be a losing battle.

There is no way to stop the smoke from moving throughout the building no matter how old or how new. Tobacco smoke, like water, will travel through every crack, around electrical and plumbing fixtures, doors, windows and even through sheetrock.

The manager may or may not be technically right when she says there are no laws in Colorado to support you, if you do not have a previously diagnosed breathing problem. I have not reviewed Colorado law, but you might want to research whether the state or the City of Colorado Springs have a nuisance law. If so you might contact the state or city attorney and ask if that can be used to require the man to stop smoking inside - "because he cannot keep the smoke inside his own home and it is trespassing on your home and right to live peacefully without fear for your health". I doubt they will agree, but it's worth a try. 

Tobacco smoke is a nuisance. Here is a definition of a nuisance according to the law: Per Witkin Summary (9th ed) Constitutional Law § 329, Torts §§ 133, 234, 235, 236; Cal Jur 3rd Nuisances §§ 1 et seq.: "Nuisance" - Anything which is injurious to health, ...or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property,..

The manager is definitely wrong when she says it is illegal for her to ask him to stop smoking in his apartment. Smokers are not in a protected class and the owner of a property has the right to make any rule they choose on their own property as long as it does not affect someone in a "legally" protected class.

I have attached letters (1) (2) you should give the manager as a means of education on the problem. You may be the first to have complained. Many people just wait until their lease is up and move rather than say anything. Until the last 10 years most people have believed it was a "right" to smoke anywhere and everywhere and no one else had a right to say anything. We just know better now.

I believe this problem is similar to the civil rights movement. It is going to take a lot of education and time to get the changes, but we will get there. There are two or three cities in California, right now (March, 2007), considering whether to require all apartments and condos to have completely smoke-free buildings.

You will not want to stay there under these circumstances as you can actually develop asthma or heart disease. Most likely there are not any smoke-free apartment communities in Colorado Springs.  Most that have gone smoke-free are in affordable or HUD apartments. I have found the best option is to look in the newspaper ads for duplexes that state "no smoking". Some private owners have been doing this for a long time. Also, make sure anyone that promises a "no smoking" policy has it in writing. Otherwise they will not likely enforce it.

If the manager would be interested in more information on how to make the building smoke-free, please let her know she can call me at no charge. If any of the above are helpful and get results, please let me know so I can share with everyone. Every small step in the right direction can be a lifesaver for someone else down the road.

We have an 8 month old baby, and smoke is coming into our home from our new neighbor's apartment. What are the proper steps to take in politely handling this.

Q.  Hi! I stumbled across your website tonight in search of advice on an obviously more extensive subject than I realized, lol. We had a neighbor move in the apartment next door to us about a week ago and he is apparently a very big smoker! Every evening for the last week we have had to suffer through the smell and the clouds of smoke. It irritates my eyes, lungs, nose, everything! I also have an eight month old daughter and I am afraid for her health as well. I haven't done anything YET but that is why I was doing research tonight. What are the proper steps to take in politely handling this. I have no problem not being polite, but I like to try being nice first, lol. Any help would be appreciated.

Also, what is being done or can be done to make this a huge deal and get someone to protect the health and rights of non-smokers? I want in!! Lol.

A.  You are in a bad situation. Your daughter should not, under any circumstances, be breathing the smoke. Even the smallest amounts can cause her, and you and your husband, serious health consequences. Her lungs will not be fully developed until she is five years old so respiratory problems, among others, are too great a possibility.

Occasionally there are smoking neighbors that will understand and smoke outside, and management companies that will understand and ask those who smoke to stop or move. But, both are very rare situations.

You need to start by talking to or sending a note to the apartment where the smoke is coming from. Explain that their smoke is coming into your home and you have an infant that can't breathe the smoke. If they try to get management to "fix" the problem they need to know that there is no way to stop the smoke from moving throughout the building. Smoke, like water, will seep through cracks, around plumbing and electrical fixtures, windows and can even go through sheetrock.

You also need to provide a copy of what you give the smoking neighbor(s) to the management. Please see this link, a "general letter to management" that explains the problem and why they must ask the smoking to be moved outside.

Before you give this information to management make a copy of your lease. Go through it and find the paragraphs that note the following (similar statements are in most leases):

PROHIBITED CONDUCT. You and your occupants or guests may not engage in the following activities: criminal conduct; behaving in a loud or obnoxious manner; disturbing or threatening the rights, comfort, health, safety, or convenience of others (including our agents and employees) in or near the apartment community..." and "You or your occupants, or guests may not anywhere in the apartment community: use candles or use kerosene lamps or heaters without our prior written approval..."

Circle the appropriate rules in red and present with your written letter explaining the problem, the fact that you have an infant that should not be breathing tobacco smoke and that you need the management to enforce the rules of the property by asking the neighbors to smoke outside.

The rules in your lease in no way preclude other dangers to residents, and state very clearly that management is committed to controlling safety hazards and dangerous products, or any product that presents a health hazard for residents especially when the hazard is inside an apartment and known to cause serious health problems in the same way you are committed to abiding by all rules and paying your rent on time.

Tobacco smoke is a nuisance. Here is a definition of a nuisance according to the law: Per Witkin Summary (9th ed) Constitutional Law § 329, Torts §§ 133, 234, 235, 236; Cal Jur 3rd Nuisances §§ 1 et seq.: "Nuisance" - Anything which is injurious to health, ...or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property,..

You need to act and speak professionally and carefully. Let them know you are very serious. Let them know you do not want to move (especially if you like your apartment), and that you should not be forced to move to protect your health. That is considered constructive eviction.

There are organizations working on this problem in some states and in Canada. If you will let me know where you live I will see if there is a funded organization in your state that you can contact. It is very important that you let your state legislator and senator know about it, and your city council rep. You should also call the local apartment association and talk to them.

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