Surgeon General’s Report 2006
Secondhand Smoke and Multi-unit Housing
Beginning on page 632 of the report:
As evidence regarding the health effects of secondhand smoke has accumulated, there has been growing concern about the impact of secondhand smoke exposure in multiunit housing settings. These settings include commercially owned apartments, condominiums, and public housing facilities, such as housing authorities and subsidized housing. Together with the workplace, the home is a major source of secondhand smoke exposure, especially for nonsmokers who live with a smoker (Klepeis 1999; Cal/EPA 2005). Secondhand smoke from one unit in a multiunit housing complex can seep into an adjoining unit through shared air spaces or shared ventilation systems.
The main approach for addressing this issue has been education of landlords and property managers with the goal of having them implement voluntary no-smoking policies. In some cases, tenants have also taken legal action to achieve this outcome (Sweda 2004). These policies may apply to common spaces within the housing complex (such as lobbies, corridors, stairwells, elevators, laundry rooms, community rooms, and recreational areas), housing units rented to new tenants, or housing units rented to both new and existing tenants.
Until recently, landlords and property managers have been reluctant to restrict smoking in multiunit housing because of concerns about the legality of doing so and because of the perception that regulating tenants’ smoking may constitute an intrusion on their privacy. However, tenants who live in multiunit housing have certain legal obligations and rights. These obligations and rights in many cases make it possible for landlords and property managers to restrict or eliminate smoking in apartments and for nonsmoking tenants to obtain relief from secondhand smoke seepage from adjoining units. In addition to protecting tenants from secondhand smoke exposure and avoiding legal action by nonsmokers who experience secondhand smoke seepage from neighboring units, landlords and property managers are in some cases motivated by additional factors, such as reductions in maintenance, cleaning costs, burns, fire danger, and property insurance premiums. Several organizations are providing information and technical assistance to landlords to encourage them to implement smoking restrictions in apartments and condominiums and are working with landlords to publicize smoke-free rentals through Web site listings (e.g., <http://www.smokefreeapartments.org>; <http://www.tcsg.org/sfelp/apartment.htm>; <
The Health Consequences of Involuntary Exposure to Tobacco Smoke Control of Secondhand Smoke Exposure 633
A recent review of legal rulings in this area found that landlords, condominium associations, and other multiunit property holders may prohibit smoking for new, and in many cases existing, occupants (Schoenmarklin 2004). Courts do not recognize a legal right to smoke in such dwellings, whether the dwelling is publicly or privately owned. In addition, residents of multiunit dwellings have access to common law remedies for stopping secondhand smoke infiltration, including local safety and health codes. If a resident of a multiunit dwelling can demonstrate that secondhand smoke exposure limits a major life activity, the federal Fair Housing Act of 1992 can be used to end the secondhand smoke incursion. Landlords and building owners can prohibit smoking in apartments and condominiums, protecting them from lawsuits related to secondhand smoke infiltration (Schoenmarklin 2004).
Similarly, a review of potential legal remedies for tenants affected by secondhand smoke seepage concluded that state regulations, such as sanitary codes, provide general language for protecting the health of residents in multiunit buildings (Kline 2000). Tenants can also use traditional claims of nuisance, warranties of habitability, and the right of quiet enjoyment.
The general health protection language of state regulations, along with evidence of the harmful effects of exposure to secondhand smoke, gives state agencies authority to regulate secondhand smoke infiltration between apartments in multiunit dwellings. In states where regulations do not exist, other legal remedies may be available, many premised on the existence of a harm to the nonsmoking resident (Kline 2000). In addition, residents who can prove that they have a disability, including multiple chemical sensitivity disorder or environmental illness, which is affected by exposure to secondhand smoke, have recourse under the Fair Housing Act of 1992 (Schoenmarklin 2004).
In 2005, a housing court jury in Boston, Massachusetts, ruled that a couple could be evicted from a rented apartment based on other tenants’ complaints that the secondhand smoke they generated was seeping into adjoining apartments (Ranalli and Saltzman 2005). The jury found that the couple’s heavy smoking violated a clause that prohibited "any nuisance; any offensive noise, odor or fumes; or any hazard to health." They made this ruling even though the landlord had not included a specific nonsmoking clause in the lease.
Some government bodies have considered or enacted policies that restrict smoking in public housing. For example, a housing authority in Springfield, Illinois, adopted a policy phasing out smoking in common areas of public housing complexes (Bolinski 2003). Another housing authority in Auburn, Maine, adopted a policy that bans smoking in all units except those currently occupied by smokers, with these units gradually coming under the smoke-free policy as current tenants are replaced (Healthy Androscoggin 2004). The policy also prohibits smoking in housing authority buildings and within 25 feet of buildings, including common areas. Finally, a city council in Thousand Oaks, California, considered prohibiting smoking in its publicly subsidized apartments, including many or all residential units (Keating 2003; Lee 2003).
Other government bodies have gone further and taken steps to regulate
smoking in private multi-unit housing settings. For example, several cities
in Alameda County, California, have local ordinances in place requiring that
common areas in multiunit housing be smoke-free (Chen 2005). A Utah law
stipulates that residential unit rental and purchase agreements may prohibit
generation of tobacco smoke (Utah Condominium Ownership Act 2005). Finally,
in 2003, legislation was introduced in the California legislature that would
have regulated smoking in apartments and condominiums (LePage 2003b; Vogel
2003). Specifically, the legislation would have made indoor and outdoor
common areas in these settings smoke-free, would have allowed landlords and
homeowner associations to penalize residents whose secondhand smoke
repeatedly seeps into neighbors’ units, would have allowed tenants to bring
legal actions against neighbors, and would have required all apartment and
condominium units to be smoke-free by January 1, 2006, unless designated by
their owners as smoking units. The sponsor ultimately withdrew the
legislation, citing concerns that had been raised about it (LePage 2003a).
Read the full report: http://www.surgeongeneral.gov/library/secondhandsmoke/report/