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The Federal Fair Housing Act addresses the problem of
secondhand smoke in multi-family housing when breathing is affected...

No one should have to choose between their home and their health. Apartment management companies and condominium associations owe a duty of care to insure that housing for their residents is habitable.

According to the San Antonio, Texas office of Housing and Urban Development not only are ALL apartment communities, regardless of government funding or not, required to abide by the Fair Housing Act but under the law if someone has a breathing problem, and a statement from their doctor, management is required to move the person who smokes to another unit in order to accommodate the person with this disability. Here is the contact information:

One Alamo Center, Suite 405
106 South St. Mary's Street
San Antonio, TX 78205
Phone: (210) 475-6806
Fax: (210) 472-6804
TTY: (210) 475-6885

Additionally, all apartment leases have a nuisance clause. If management is choosing to require some residents to abide by this rule and not others this shows a prejudice, especially when it is ignored as pertaining to a handicapped person (i.e. one with an established medical breathing problem).

The Smoke-Free Environments Law Project in Ann Arbor, Michigan has provided an enormous amount of legal information pertaining to this subject.

Smoke-Free Environments Law Project
The Center for Social Gerontology
2307 Shelby Avenue
Ann Arbor, MI 48103
734.665.1126
734.665.2071 Fax

The following information can be found at

THE FEDERAL FAIR HOUSING ACT AND THE PROTECTION OF PERSONS WHO ARE DISABLED BY SECONDHAND SMOKE.

Infiltration of Secondhand Smoke into Condominiums, Apartments and Other Multi-Unit Dwellings

In April, 2004, the Tobacco Control Legal Consortium, of which the Smoke-Free Environments Law Project (SFELP) is a founding member, published a "law synopsis" of the above title which discusses legal remedies available to tenants and landlords concerned about secondhand smoke infiltration. The article was written by SFELP Consulting Attorney Susan Schoenmarklin and can be accessed, in pdf format, by going to http://www.wmitchell.edu/TobaccoLaw/resources/SchoenmarklinWeb.pdf.

The Federal Fair Housing Act [the following excerpts are taken from the above-mentioned Web site]

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 Centerís 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.

Cases

In the 1991 Massachusetts case Donath v. Dadah, a tenant sued her landlord alleging negligence, nuisance, breach of warranty of habitability, breach of the covenant of quiet enjoyment, intentional infliction of emotional distress and battery due to secondhand smoke exposure. The plaintiff asserted secondhand smoke from the second floor of the building in which she lived caused asthma attacks, difficulty breathing, wheezing, prolonged coughing, clogged sinuses and frequent vomiting. The plaintiff moved out of the apartment shortly after filing suit, and settled for an undisclosed sum of money in December 1992.
In the 1992 Oregon case Fox Point Apt. v. Kipples, a tenant who was sensitive to secondhand smoke successfully argued that her landlord breached his duty to make her apartment habitable by allowing a smoking tenant to move into the apartment below her. The plaintiff suffered swollen membranes and respiratory problems as a result of the secondhand smoke. A jury unanimously found a breach of habitability, reduced the plaintiffís rent by 50 percent and awarded damages for the plaintiffís medical bills.

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 residentsí 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.

Additional Cases

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.

The problem of secondhand tobacco smoke penetrating into adjoining units is not only a serious health problem, but it is a problem that cannot be simply dismissed. Management assumes a high amount of risk regarding secondhand smoke and all non-smoking residents based on the known facts of its dangers. I assisted one single mom with a newborn baby that began severe respiratory problems, coughing and choking, after a man who smoked inside his apartment moved in below her. After speaking with the attorney for the apartment owner they moved the smoker to a unit next to another smoker, and declared the units around hers smoke-free.

An expectant momís unborn child can be in danger due to the motherís breathing tobacco smoke in her apartment that comes from a different unit in her building. If a resident has heart disease he or she can be at risk of a heart attack, and if someone has cancer their chemotherapy can be nullified by the smoke. Due to the number of asthma cases diagnosed every year, it is an absolute fact that they will rent to many other residents with asthma, including children. Will management plan to tell every person, or parent of a child with a serious illness exacerbated by the unwanted tobacco smoke that they must live with it? There is too much information and research now to assume this problem can be ignored, and renters are no longer accepting that answer. The 2006 Surgeon Generalís Report speaks at length to the dangers of secondhand smoke in apartments and condominiums.

Management expects all residents to abide by the lease contract. It is just as important that management do the same by informing current and potential residents that smoking will no longer be permitted inside the apartments and in all common areas connected to the building where non-smokers live in order to protect their health.

Smoke-Free Housing Consultants, Jacque Petterson
12274 Bandera Rd., Ste. 210, Helotes, Texas 78023-4385
(210)  383-3244
(9AM to 8PM Monday - Saturday Central Time Zone)
Fax: (210) 695-6101
Email: consultant@s-fhc.com


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