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Do you have questions about
smoking problems in an apartment or condo?
Email your questions here.

I bought my condo and should have the right to do what I want inside my unit. 

Q.  I've just recently moved into my first place. I'm 22 years old and have been on a great path..I've graduated college and moving forward with my career. I purchased my condo in a suburb very close to Chicago, IL. I wanted my freedom, be able to live comfortably and not to mention the way I like to live! I have a lot of friends and many of us have just graduated college so we're still having fun. I am very respectful to my neighbors... I keep noise levels down, I clean common areas, I try to keep the peace as much as possible but I feel as if I pay mortgage so I should be able to do whatever I choose in my owned unit. I am a smoker of marijuana and my boyfriend smokes cigarettes --now my boyfriend does not live with me so the cigarette smoke is not constant but when he is there he smokes. The marijuana smoke is probably constant but I light candles and other things to keep my neighbors from complaining but I do not think that I should be forced to go outside every time I smoke... that's the reason I bought a condo of my own and have no roommates! I should have say so and not be inconvenienced or deprived my ideology of comfort in my own home. I'm not sure what I can do to bring this up in our next building meeting .. I kind of want to bring my lease, documents stating that I can smoke in my unit, make it where my board can't force me to go outside... I'm just looking for pointers and advice. ME

A.  Dear ME: When you live in a multi-family building you cannot do just anything you want inside your apartment home. Whenever your actions affect the quality of life for the others the activity must stop. That means loud music, jumping up and down on the floor if you live above others, and smoking, which cannot be contained inside the apartment. It makes others very ill to the point of struggling to breathe, and causing cancer and heart disease.

The condo board is correct in banning the indoor smoking.

If you want to smoke inside you need to rent a single family home where the owner does not care.

Why was I charged for smoking in my apartment?

Q&A. I recently moved from a place that I rented for a few weeks over two years and when I signed the lease, there was no language that explicitly prohibited smoking inside or outside of the apartment.  I smoked outside on the balcony near the living room... Smoke of any kind is sucked back inside a building through windows, doors and any cracks around them, even when closed.

...and occasionally inside the living room and always cleaned the carpets, windows and walls regularly.
A. Unfortunately the chemicals in tobacco smoke are dangerous and embed themselves into everything they touch, making it impossible to clean out – replacement is necessary to accommodate future residents to protect their health.

I also never smoked in any other room including the bedroom, bathroom and hallway. 
A. Smoke cannot be contained in one room of any building. In fact it fills all surrounding apartments outside the smoked-in apartment as well.

I always left a window open with a fax fixed to blow the air outside.
A. There is no air filtration or fan system that can force all of the chemicals (which cause the smell) outside to prevent permanent damage.

When I asked visitors if my place smelled like smoke, no ever replied “yes” or even “a little.”
A. No one wants to offend or hurt the feelings of someone who smokes. Non smoking visitors to your home are not going to make you, their host, feel bad. And if the guest smokes they will not smell it anyway.

I was informed by the property manager that they “had to replace all the carpet and primer the walls due to nicotine damage” and that the full amount for both were being held from my deposit.  There were no burns or damage to the carpet other than normal wear and tear and in the state of California, I cannot be charged for painting after two years because of normal wear and tear. 
A.Carpet and padding replacement and primer paint is not required when doing normal “touch-up after normal wear and tear”. The smoke damage is above and beyond. They were justified in keeping the deposit. You can also be billed (and sued) for the costs above and beyond your deposit.

They denied my request for a walk through and never contacted me after I moved to set one up even though I asked them to.  They also failed to send me a notice in writing during the mandated 21 days and contacted me by
phone only after I contacted them on the 22
nd day to inquire why I hadn’t received an itemized list or a refund.  In California, I read that I have the right to a full refund if they fail to contact me within 21 days.  

A. You are absolutely correct on this one. Take them to court and you “may” get your money back. Unless you did not give them the correct forwarding address and they sent it to your old apartment address, receiving it back undeliverable.

Please visit my web site when traveling, for a breath of fresh air.

Jacque Petterson
Smoke-free Housing & Travel, LLC

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:  /

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 This next article notes it may be illegal for people to smoke inside your hallways and other common areas . 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's cigar smoke comes back into our house. How can I stop it?

Q.  I have a home in residential area and my neighbor smokes a Cigar constantly, we have the fans running constantly and still we can smell this smell. I have complained to the board and it fell on deaf ears. We are in a home that is a zero lot line so we are close.  Do you know of anyway I can pursue this??? Your Help is Greatly appreciated.....

A.  Getting the courts to understand and agree that it is a "nuisance" is questionable. When we bought our house I already knew this could be a problem and had warned my realtor that I would not buy if there was a chance someone would smoke in a yard next to ours (our homes are also very close). So I walked around the block until I found someone to ask. It was the neighbor who lives behind us. He said the only smoker on our block was his step-son and he was moving out that day. We bought the house and the step-son and his smoking wife moved back in. The neighbor was on the board of directors and I attended the meetings. I kindly explained that if they smoked in the backyard that I would take them to court under the nuisance clause because I would not jeopardize my health nor give up my right to use my backyard or leave my windows open. They smoked out back a few times and I emailed or called the owner to kindly request they refrain. The neighbor is nice, but tried recently to get me to give in to certain times of the day. I did not give in at all as there would be no guarantees once the door was open to let them smoke there, and no guarantee I could avoid the smoke. They took me very seriously and are not smoking back there.

Would I win in court? I really doubt it, but I would take them to court over it. We have a problem in my city that they allow smoking inside the courthouse. I have asthma and would have to require the court proceeding be held elsewhere. I have already made the local news and front page of the newspaper trying to get the courthouse smoke-free.

Here is the definition of a nuisance: 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,....

I believe it would be worth a try. Times are changing and some judges realize the dangers of secondhand smoke. You can also download the surgeon general's report as evidence

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.

Can a landlord deduct damages due to smoking in a rental? 

Q.  Can a claim be made against a tenant's security deposit for damages, caused by odor from their cigar and cigarette smoking, to a leased house? The tenants have vacated. There is smoke odor that can only be removed by cleaning & then painting the walls and ceilings, cleaning air conditioning ducts, and replacing the air handler in the air conditioning system that will cost more than the security deposit. The lease said nothing about smoking.

A.  Absolutely - you can claim the cleaning and damage from tobacco smoke unless you stated verbally or in writing that tobacco smoke would not be considered damage and deductible from the deposit for cleaning purposes?

Because I don't know what state you are in it is important to check the laws, but I'm sure your lease and/or security deposit laid out the condition the rental would need to be left in in order to have the deposit returned. Any costs, not including normal wear and tear, are deductible from the deposit in order to bring it back to a habitable condition for the next renter.

Don't forget to look for burns on floors and cabinets from lit cigarettes or cigars left unattended.

You should include an addendum with future renters to advise them that smoking is not allowed. If you decide to allow it you may also be able to ask for an additional deposit just like a pet deposit, but I do not recommend it as it increases the risk of fire. You could also add a statement to the addendum that notes a large fee, such as $500, that would be charged to the renter if anyone is found to be smoking. The smoke-free hotels and some apartment communities are doing this now to deter smoking.

We have the smoke in our side [of the apartment], how does that affect us physically?

 Q.   I live in a duplex and my side fills with the stench of smoke when I have the heat on and they are smoking. This past weekend we smelled a burnt smell when the heat was one and wondered if they were doing drugs. Do you know what it smells like when someone smokes marijuana or other drugs? Also, if we have the smoke in our side, how does that affect us physically?

A.  I cannot explain the differences in the smells of tobacco smoke and other drugs. I would suggest contacting the police and asking them to come check it out.

You are definitely in harms way by breathing even small amounts of smoke from your neighbors apartment (any kind). I am working with a woman now that is very sick from her neighbor's smoke and appears to be developing asthma.

You can talk to your landlord to see if they are willing to do anything about it. You never know. Some landlords don't want smoking in their apartments and others don't care. You can print this letter (click on link) to send to your landlord so they will understand the dangers and need for a smoke-free home.

Boyfriend is asthmatic and experiencing breathing problems in his apartment. We can smell his neighbor's smoke.

 Q.   My boyfriend's apartment smells like smoke, and he doesn't smoke. One of his neighbors smokes, and the smell seeps into his apartment. His clothes smell like smoke, and this has become a nuisance. He was asthmatic as a child, and has been experiencing problems breathing. He has contacted his landlords, but they say the smell of smoke comes with apartment living. They have been very unhelpful.  His apartment complex is called Lawyer Hills in Elkridge, MD.  Can you please help us with this situation because his lease doesn't expire until the end of June this year.  What can he legally do.

A. Your boyfriend needs to go to his doctor and get a letter stating he cannot live where there is tobacco smoke, and that it is a life-threatening situation. And he needs to give them a copy of this statement Laws And Policies. He needs to let them know that if they are not willing to stop the smoking they must, at the least, let him out of his lease as a "reasonable accommodation".

Finding a new place without smoking will be another problem. There are a few communities transitioning to smoke-free in Maryland, but not terribly near where you are now. Blair Properties in Silver Spring and First Centrum (may be senior affordable housing only) Another option is to find a duplex owner that does not allow smoking (there are usually a few in the local papers, but not always in the best locations) or to rent a single family home that has not been smoked in.

If the apartment management refuses to help, you really need to try and find an attorney that will help you get out of the lease or get the smoking stopped. Most attorneys are not going to understand this problem, but I can educate them and provide the legal research they would need.

Another option is to ask the court for a temporary restraining order to stop the smoking until you can make other arrangements. (This is not always successful, but worth a try.)

One more thing. He should ask other neighbors if they, too, are bothered by the smoke. Going to management in numbers can be helpful.

Why are the concrete walls not stopping the smoke and marijuana in our condo building?

Q. My husband and I have lived in and owned our condo in Clearwater, Florida for a little over 5 years. My neighbor has rented his condo for approximately 2 years. I had no problem with smoke issues until the past 4 or 5 months. The neighbor's brother lives with him off and on now and so does a woman friend. Our buildings are concrete and have thick concrete walls between them. Both smoke and marijuana odor is coming into my apt, but I have no idea how it gets in. The smoke is a constant thing, but the marijuana is not an everyday occurrence but rather like 3 or 4 days a week. Even with the neighbor's doors & windows closed, the odor continues to come in. I had asthma before I started getting treated for allergies 50 yrs ago. I've had ongoing chemical and food allergies since, but have not had asthma since I went on allergy treatment for dust, mold & pollens. For the chemical allergies I avoid going around places or things that bother me. I am starting to get breathing problems again from this smoke & odor. It is making me nauseas, gives me headaches, makes my eyes dry and itchy, I've broken out with hives at times and also have had diarrhea several times when it has been extra strong. I get diarrhea from various other odors I am allergic to such as perfume, therefore I am positive it is from the odor & smoke as I do not use any perfume, sprays or anything with odors in my home. On several occasions I got up in the AM dizzy and staggered across the room when I first got out of bed. 

As time goes on, I am having worse symptoms, like right now I am getting hives, coughing & feeling very nauseas. The odor is always extra strong on holidays, late nights and weekends. You can smell the smoke sometimes, clear down the hall which is outside the condo units. They don't smoke outside, they do it inside their unit. Three other neighbors have stated that the smoke was really bad when they walked by the smokers' apartment & that they could smell it clear down the hall. Somehow, the odor comes in our condo even when you cannot smell it outside.

My husband said something to the neighbor on one occasion about the smoking & the pot, etc., that they better quit because it was making his wife sick, but he  just denied everything and went in the house & shut the door. I wrote the condo association a letter. They said it was a police matter, not theirs. 

I was reluctant to call the police due to the fact that it is almost impossible for them to be able to legally enter the neighbor's condo unless they actually see them smoke the marijuana. I felt so terrible one evening that I finally did call the police. They came out & said they couldn't do anything about it. They also said they have the right to smoke in their own condo.

My condo association has approximately 13,000 senior citizens, most of which are 55 and over. The condo association is not easy to get along with on any matter. Could you please direct me as to what steps I could take.

A. You are in a tough position. I suspect there are cracks in the concrete walls and floors that are allowing the smoke through. We are trying to educate condo associations and apartment owners on the fact that without completely encapsulating each apartment there is no way to stop the smoke. It is a gas that will maneuver through a building in ways we can't even imagine.

You could sue the smoking neighbors and/or your condo association under the nuisance clause in your CC&Rs, but the courts have not been kind in such suits previously unless the board had already added no smoking rules.

If you can convince enough people in your building to take a stand against the smoking, and ask the condo board to change the rules to state all smoking must be moved outside to protect the health of all residents, you might have a chance. Here is a link to sample smoke-free addendums for CC&Rs (the Covenants, Conditions & Restrictions) The condo association can take these to an attorney and amend them to fit your specific situation. This has been done and held up in court.

With your health problems your only option for survival is to live in a completely smoke-free building. Because your condo association is so large, and from what you say not easy to deal with, you may have to sell your home and buy a single family home. If you can't afford a single family detached house you may be forced to find a duplex for rent in your area that is owned by someone who prohibits smoking.

I can't breathe in my own apartment.

Q. It has truly been the most horrible year of our lives for my husband and I. I suffer from asthma
that will react very badly to smells such as smoke and strong chemicals, etc. I am from a large family of non-smokers in Chile. I have never touched a cigarette and like to keep healthy in hopes of living a long life.

     We have lived in this apartment since 2003. In 2004 the owner of this complex had a company
replace all piping in the buildings. I smelled smoked before, but not as bad until after they replaced the piping. I have asked the building complex more than 5 times to please come and fix the holes in the cabinets, bathroom, closet, in the kitchen under the sink and behind the water heater. I am always ignored and the smell of smoke is getting worse. All of our clothes have to be cleaned and dry cleaed constantly. I know the apartments where the smoke comes from and have written five letters to the management, but nothing gets done. They do not think it is serious, having a smoking problem. This morning I was up early because of the smoke. It is winter, very cold, and I have to
keep the door open as this building does not have cross ventilation. I am starting to feel sick. We have constant headaches, and all the food in the kitchen smells like cigarettes. We cannot move yet for economical reasons. I have heard there are some laws against this. Could you please, please help me. I feel at the moment that life is falling apart and on top of all this I can't even breath in my own apartment.

A. There is no law as of this date to force apartment owners to stop the smoking. The City of Belmont, CA is considering banning smoking in apartments and condos this next year. If they do it will be the first such law in the United States, and I believe anywhere. Because you have asthma if you get a letter from a doctor noting that you cannot inhale secondhand tobacco smoke because it is immediately life-threatening you can use the Federal Fair Housing Laws to explain to the management that you are due a "reasonable accommodation". That can mean making the smoking residents smoke outside, moving you to an apartment next to smoke-free apartments only, or releasing you from your lease so you can move. The most important thing is to do something right away. If you have a relative you can stay with until an accommodation can be made that would be highly advisable. If not you can wear three (all at one time) dust masks over your mouth and nose while in your home until you can make other arrangements.

Is it our duty as an HOA to get involved with a smoking problem between neighbors?

Q. I have a question, I have recently been named president of our HOA board. Here is my first problem: The lady lives and owns her multi level unit and in between her and her other neighbor is an owner and a smoker. She is troubled by the smell coming from the smoking neighbor to the point she has written a letter asking the smoking be stopped in their apartment or taken outside with no help from the smoker. She now has approached the board to have us intervene because of the smell. Our CC& R’s do not currently have any smoking by laws. Is it the HOA's right or duty to get involved or does the troubled tenant have to go to the city government?

A. There are a number of issues here. I will try to go through them individually.

1.  Although the CC&Rs do not specifically address smoking it is the same as any "nuisance" that disturbs the right of an owner to enjoy their home in peaceful and quiet enjoyment. All CC&Rs have a nuisance clause. You may have seen this definition of a nuisance in a previous Q&A:

  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,....

   Because there is no way to stop the smoke from filtering through the walls, around electrical and plumbing fixtures, the smoke is in the walls between the units. In my opinion (I am not an attorney) because the smoke travels throughout the entire building this involves the association. When my husband and I bought our upstairs condo in 2000 we asked the HOA if we could install vinyl flooring in the dining room. We were told that if the neighbor below complained that the movement of our dining room chairs bothered them we would be required to remove the flooring and re-install carpeting. If the HOA has the right to act on this type of disturbance from one neighbor to the next then should they not have the same obligation to tell a smoking resident that their smoke is disturbing the rights and health of the neighboring resident(s) and they must cease smoking indoors. (The 2006 Surgeon General's report, which includes apartments and condos, notes the dangers to non-smoking neighbors.) The odor of the smoke, just as with natural gas, is an indication of the dangers at hand.

    If the majority of the owners agree, you can amend the CC&Rs to include a no-smoking clause. A case was just won against smoking neighbors in Colorado after the association's three of four owners chose to make their building smoke-free. The smoking owners filed a lawsuit and lost, being forced to smoke outside. I have always thought it should be that, instead of requiring a percentage of all owners to amend the CC&Rs on this issue, it could be done building by building. If the majority of the owners in her building would agree you might want to consult with an attorney to see if this can be done, making that building smoke-free. You would need to find an attorney that does not simply use his or her opinion, but one that truly looks at the laws. Too many attorneys still struggle with smoking issues and choose to jump to conclusions without checking the facts.

2. The complaining resident should complain to her local government as a matter of education on the problem. The health department should know about it, and, although they are unlikely to respond, should be addressing the problem under health and safety codes.

3. She can also attempt to obtain a temporary restraining order to stop the smoking until the problem is resolved.

Dryer venting tobacco smoke into adjoining home in duplex.

Q.  I have a question for you that I hope you can answer for me. My husband and I live in a duplex. The women who lives beside us smokes. When we run our dryer we smell the smoke stench in our unit. It smells all along the wall that backs up to hers. Is there anything we can do? We are thinking about starting a family but I do not want to submit a child to this. My husband believes the smell is just a smell and we are not affected by the second hand smoke.

A. My first question is, Are you renting or do you own? There is no way to stop the smoke from coming through the walls.

If you rent you can speak with the owner and see if he understands and is willing to change the rules to require the neighbor to smoke outdoors only. If he does not, or you own your side of the duplex, you would need to sue the neighbor under the nuisance clause.

You are right to not want to bring a baby into a home with tobacco smoke, even in a small amount. The EPA states there is no safe amount.

If you cannot get the smoking stopped I would begin to find a way to live somewhere else. In most cities there are duplex owners that require no smoking and advertise it this way. Just be sure anywhere you move you have it in writing that smoking is not permitted indoors, and preferably on patios.

It is perfectly legal to ban smoking in both apartments and condos.

Suffering in an Illinois condo.

Q.  I am in a condo in Illinois suffering from a neighbor who smokes. The smoke permeates into my apartment, the hallway, the elevators, and is unbearable. I have complained to the association and my fellow neighbors, who are suffering with me, but no action has been taken.

What can I do?

A. In a condo association you would need to get a certain percentage (whatever it states in you CC&Rs) of the owners to agree to amend the CC&Rs to include no smoking in the building.

If you are the only one who wants it stopped you can use the nuisance clause, but you will probably have to take the smoking resident to court for a resolution. You can also try mediation, which is available through the city attorney's office in many cities.

Recently a condo association in Denver made a four unit building completely smoke-free as three of the owners wanted to stop the smoke from coming into their homes. When the owners who smoked took the case to court they lost, and the judge ruled in favor of the board's decision. The judge agreed it was a nuisance.

      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,....

Every court is different and you would have to test to the waters in your area. I am not an attorney, but I believe the court should rule in favor of the true definition of a nuisance. Tobacco smoke more than applies. 

Single mom in Section 8 apartment with a son allergic to tobacco smoke.

Q.   I have been researching the Internet for some time now on the effects of second hand smoke. I am a nurse and a single mother of one. I've lived in Section 8 housing for three years. In the last year, my landlord, who was already aware of the situation, rented to yet another smoker. The last neighbor smoked outside, I live upstairs and they live directly below me. This new tenant however, smokes all day inside and so do her visitors. The two closets in my hallway which store the heater and a/c unit have also been sealed. The clothes in my closets also smell like a carton of cigarettes. Not to mention that my son suffers from allergies year around and his condition worsens daily. I have complained to my landlord numerous times, all she tells me is that there is nothing she can do about it. I've called the city also to no avail. I would just like to know if there are papers I can file or if there is someone that you can refer me to, I don't know what else to do.

A. My first concern is for your son. You should not have to worry about his suffering due to unwanted smoke in your home. Your landlord is wrong. Many affordable housing communities across the country have changed their policies to create smoke-free buildings for their residents for this very reason. Your apartment owner owes you a habitable home, which you do not have at this time. You need to get a letter from your son's doctor stating his illness and present it to the manager with information you can download from this site The only option is to allow you to live in a building completely free of the smoke. Because the smoke cannot be contained in an apartment (each apartment would have to be completely encapsulated), the only way to do this is to either move you and your son to an apartment adjoining other non-smokers and dedicate that building permanently smoke-free or do the same in your current building, telling those who are smoking they must stop until they can make other arrangements.

Asthmatic in Dallas Apartment needs a smoke-free home.

Q. We live in Dallas and currently are talking with the management about the secondhand smoke coming from the new neighbor underneath our apartment - but this smoke permeates the other three units in this one building as well.

The smoke is of course a problem for our health - I have had asthma since birth and the asthma is much worse now than it has ever been. The neighbors are also having breathing problems (one lady also has asthma) and the smoke smell is heavy. Some times when I walk in the apartment, it smells like I'm in a bar.

You might suggest to just move but our finances will not support that at this time and I feel that since I have lived here for over 20 years and been a model tenant that it is in the management's best interest to keep such a tenant here.

A. It is amazing when management ignores the fact that the smoke makes health problems worse for their residents, and often can be deadly, but with the cost of turnover, not to mention what the smoke does to their property, showing no concern for a resident who has faithfully paid the rent and taken care of their property for twenty years doesn't make any sense.

The manager needs to be made aware of the ADA (Americans with Disability Act) laws that apply. They are a business providing a service and must accommodate anyone with a chronic breathing problem when it is made worse by exposure to secondhand tobacco smoke (this is actually mentioned in the ADA). According to the San Antonio, Texas Housing and Urban Development office that accommodation would mean moving the person who smokes and making your building smoke-free. I have sent you information that will advise them of this requirement.

We thought the building was smoke-free, but now smoke is coming into our apartment through the vents.

Q. I am currently renting an apartment in Milwaukee and having some issues with smokers. My  roommate and I moved in to what we thought was a smoke-free building (assumed because we didn't smell any smoke), and about 2 months later we had some people move in across the hall that smoke. My main concern is that it is pouring through the vents directly into our apartment. It is a disgusting smell and I shouldn't have to live in it. I am wondering what sort of action I can take. I have complained several times to my landlord, but nothing has been fixed. I'm hoping you can point me in some sort of direction. 

A. Most people do not realize that tobacco smoke filters throughout a building until it is too late and they have already settled into their apartment or condo home and smell the smoke. Apartments are not considered "smoke-free" unless it is stated so in the lease or an addendum to the lease, and advertised as such. (Everyone should start asking for a designated "smoke-free" building when searching.)

That does not mean, though, that the landlord does not have an obligation to provide a safe, smoke-free and habitable home for their residents.

If either of you have a respiratory or heart problem that was previously diagnosed by a doctor, and can get a doctor's letter stating that the illness is made much worse by secondhand smoke, the management is required under the Federal Fair Housing Law to accommodate you.

Even if you do not have a previous illness we know that any amount of tobacco smoke can cause a serious illness to develop that otherwise would have been avoided. Take a look at your lease and you will probably find a section that says something like, "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...". This should apply to all residents and does not mean "other than the dangerous fumes from a cigarette".

The tobacco smoke is a nuisance. 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,....

Let your landlord or manager know you do not want to live with the smoke in your home. Ask them if they are aware that many apartment communities are now providing separate smoke-free buildings. If you would like to download materials that may convince them to begin the process of making this transition go to this link

Condo owner rents to someone who smokes making the owner upstairs sick.

Q. One of the owners in our condo building just leased his place to a smoker. The smoke is seeping up into my unit. I'm very allergic to it. Is there anything we can do as a condo association?

A. You will need to check you CC&Rs, but they generally state a certain majority of owners can change the rules or policies at any time. You can go to this link, roll down and you will see sample addendums for a smoke-free property. Find the one that fits your situation best. Once agreed and voted on you can have an attorney draft the amendment and file it with your state government. (If your attorney says you can't do this you will need to find another attorney as this is legal and some attorneys don't take the time to do the research.)

Although I encourage you to do the above to make sure future owners do not allow smoking, you can also use the nuisance clause in your CC&Rs. The smoke is obviously preventing you from living in peaceful and quiet enjoyment of your home. Most CC&Rs state something like, "your neighbors have an equal right to the peaceful use and enjoyment of their unit".

Per Witkin Summary (9th ed) Constitutional Law § 329, Torts §§ 133, 234, 235, 236; Cal Jur 3rd Nuisances §§ 1 et seq.: [The definition of a] "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,....

Will an air filter or exhaust fan help with the smoke from a neighbor's apartment?

Q. Hello, I'm wondering if you can help me. I live in a small apartment building in New York City, and the smell of my neighbor's cigarette smoke gets into my apartment. She lives 3 floors below me!  I am trying to find a solution.  I was thinking of asking the Coop Board to purchase an air filter and an exhaust fan for the smoking neighbor's apartment.  Does this sound like the best solution?  Do you have any other ideas?  She smokes like a chimney and the smell is bad, and I have a 2-year-old, so I am really worried about this.

I have been having trouble figuring out what kind of an exhaust fan to get.  Is there any way to have an exhaust fan that won't result in having cold air blow into her apartment?  The smoker is an elderly woman and I assume doesn't want to keep the windows open in the winter.

A. There is not a filter made that will extract the dangerous chemicals from the tobacco smoke in your apartment. All they can do is mask the odors. Exhaust fans will be minimal help at best. The smoke is a toxic gas that cannot be contained or eliminated.

Have you spoken to the other residents to see if they are also bothered or concerned about the smoke in their apartment? If you can gather signatures or support from others you will have a better chance of convincing the owner/manager to stop the smoking.

If the owner/manager is not willing to force the smoking to be done outside it is vital that you protect your child at all cost. The lungs in children under the age of four are not fully developed and have a greater chance of permanent damage with exposure to even small amounts of tobacco smoke. Also the smoke can cause your baby ear infections among many other ailments. 

Last year a Massachusetts state court upheld the eviction (click on link) of two condominium tenants because of cigarette use inside the home. There were numerous complaints from other residents.

Also, here is the link to an article from the New York Law Journal that states, "Pursuant to §235-b of the Real Property Law (RPL), a warranty of habitability is implied in leases for residential premises. The court held "as a matter of law that secondhand smoke qualifies as a condition that invokes the protection of RPL §235-b under the proper circumstances" and, as such, "it is axiomatic [obvious] that secondhand smoke can be grounds for a constructive eviction." Constructive eviction means you are forced to move to protect your health and safety against your will because a landlord did not take care of the cause of the problem.


Q: Dear Ms. Petterson,

Hi, I just found your website this morning, and I am hoping you can give me advice about second hand smoke. I have lived in a particular apartment
complex for 7 years.  A few weeks ago a new neighbor moved into the apartment that is back to back with mine.  This resident, or someone who frequently visits this resident is a heavy smoker, and my entire apartment fills with the smell of smoke.  When I wake up in the morning, before I even open my eyes, I’m smelling smoke.  This is no exaggeration.

I cannot stand the smell of smoke, I am allergic to it, it is very unhealthy, and the stench will soon permeate my furniture and clothes permanently.  It takes several hours after leaving my apartment for work, to get the smell of the smoke out of my nostrils.

Can you please tell me what legal rights I have to get my apartment management to do something about this?

I live in the state of Texas.  I have already told the apartment management that this is a problem.  A maintenance man came by my apartment, and told me there is nothing he can do.  This is not an acceptable answer to me.  What should be my next step and do I have a legal right to break out of my contract and move without penalty if this issue is not resolved?

A. There are many laws on the books that would say you have a definite right to be released from you lease because the smoke does present a serious health risk. Whether you could convince a judge of that in Texas is another story.

There are a few cases that have been won in other parts of the country over the past year where landlords have been forced to stop the smoking and make the apartment (or condo) safe from smoke. I just heard about an apartment owner in California that settled out of court when sued by a resident asking for a smoke-free apartment. He stated he will be creating smoke-free buildings in the future. But he is in a very smoke-free-air-friendly area.

I had the exact opposite happen when I helped a woman with asthma here in San Antonio file a HUD complaint two years ago. Although the apartment management asked the smoker to smoke outside while we were waiting for the ruling and the smoker eventually moved, the ruling was against us. I called the Dept of Justice on Washington, D.C. and was told each state had the right to rule as they choose and there was no way to go higher. I then spoke with the woman at the highest level in Texas and she told me that even though her child has asthma she believes it would be her responsibility to move and leave the smoker alone. She would not support us or rule in our favor.

Bottom line: yes the law is on your side, and you should be able to break your lease for the sake of your health, but it is not likely the management company will agree. You have a case of constructive eviction. Please see this link for more information.


Q: My new owners of the apartment I have lived in for 24 years tell me that under some new provision of the law, they can no longer designate certain units as Smoke Free. Is this correct?

I am allergic to cigarette smoke. Any smoking in the apt below quickly filters up through the walls/floor and into my unit causing me to become ill. My previous landlord kept these two units (mine and the one below) as non-smoking for many years. However, the new manager said the law changed, and because they just bought the apartments, they cannot legally continue this smoke-free designation. Is this true?

A: Karen: Your new owners are mistaken. There is no law anywhere in the United States that prevents an apartment owner from designating any or all of their apartments 100% smoke-free inside and/or outside. They own the property and can require any rule or policy that protects their property and their residents as long as it does not discriminate against someone in a legally protected class. In the United States smokers are NOT in a legally protected class.

In fact HUD and the U.S. Dept. of Justice created a joint statement that states, as per the Federal Fair Housing Act, that anyone with a previously diagnosed breathing disability can be considered "handicapped" and should be given a reasonable accommodation when their breathing is impaired by anything, which would include tobacco smoke entering their apartment from another. (Breathing affected by tobacco smoke can be considered a disability under the Americans with Disabilities Act in some cases.)

As a matter of fact there have been cases won in court in the past year where landlords have been required to stop the smoking. Tell them what I've said or show them this, and ask them for a copy of the new law, then let me know what happens.

Will a brick wall stop the smoke?

Q: Dear Ms. Petterson,

I read
your website with great interest. I own a single unit of a duplex built in 1989. The common wall between the 2 units is some type of “fire wall” construction to prevent fires from passing between the 2 units, sound-proofing of this wall seems to be superior. Attic space is not shared, the wall goes all the way up to the roof. What is likelihood of tobacco smoke passing through such a wall? If you are not sure of the answer, anyone locally you know I can hire to make this assessment? JY

A: I have always "thought" that a brick firewall "might" stop the smoke. But, if there are cracks in the mortar, or under or above the wall smoke can escape into the adjoining unit that way. It can also escape to the outside of the smoked-in-home around windows and doors and be sucked back in through your (assuming you are the non-smoker) windows or doors. There is a suction action that causes smoke to pull to the inside of a building.

I am not aware of anyone in San Diego that could help. You could call a home inspection company, but they will likely not have the tools to read the air for smoke.

I can tell you my personal opinion is that nothing can stop the smoke from filtering into an adjoining home, and if the smoke is coming in and you have any illness made worse by it, you may have to move. It is sad that we do not yet have a standard of rules for this situation, but I hope it will happen someday.

If the problem persists and you want to stay you can attempt to request a restraining order to move the smoking outside. Although the "law" is on the side of the non-smoker and health with protection under the Fair Housing Act (& smoking is not protected), the courts have not been quite as dutiful in ruling to stop the smoking as often as they should.

Can a landlord or condo association ban smoking on patios?

Q: Hello! I'm writing to ask about laws regarding smoking in areas of dense private residence such as apartments or condos.  We live in a condo in South Burlington, Vermont and are frustrated when we can't allow "fresh" air into our home in the summer because it carries in so much second-hand smoke from the neighbors smoking on their patios below and to either side of us.

Do you know if landlords are allowed to put smoking restrictions on their property?  Or if a condo association has the right to ban smoking within X feet of the buildings if a majority of members are in favor? MH

Yes, it is perfectly legal for landlords to put smoking restrictions on their property, and for condo associations to ban smoking anywhere and everywhere on the property. This includes both inside the units and outside. It does take a certain majority in favor of the change. Please check your CC&Rs for the specifics on your property.

Please go to this web page on the Smokefree Apartment House Registry to view and download sample addendums for CC&Rs. These can be adapted for your specific property and needs and taken to an attorney for review. Changes have to be filed with your state.


If you have questions concerning secondhand smoke or other smoking-related concerns whether in multi-family or single family housing, please forward them to me at or 8810 Brae Crest Dr., San Antonio, TX 78249.

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"But now God has shown us a different way to heaven - not by "being good enough" and trying to keep his laws, but by a new way (though not new, really, for the Scriptures told about it long ago). Now God says he will accept and acquit us - declare us "not guilty" - if we trust Jesus Christ to take away our sins. And we all can be saved in this same way, by coming to Christ, no matter who we are or what we have been like. Yes, all have sinned; all fall short of God's glorious ideal; yet now God declares us "not guilty" of offending him if we trust in Jesus Christ, who in his kindness freely takes away our sins." Romans 3:21-24 Living Bible
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