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.
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Imagine
being told you have no right to live
in a smoke-free home.
It happens every day in apartments and condominiums. |
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When
renting an apartment or buying a condominium,
be sure to ask for a smoke-free building. |
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Warning!
Tobacco smoke does not stay
in the smoking residents apartment.
It
enters and fills all the other
apartment homes in the building. |
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Find information about smoke-free
apartments in your area?
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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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