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 http://blairapartments.com/page.cfm?name=About+the+Blairs and First Centrum (may be senior affordable housing only) http://www.firstcentrumcommunities.com/communities/p_communities.cfm. 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) http://www.smokefreeapartments.org/condos.html. 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 http://www.wmitchell.edu/TobaccoLaw/resources/SchoenmarklinWeb.pdf. 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 (9^th ed) Constitutional Law § 329, Torts §§ 133, 234, 235, 236; Cal Jur 3^rd 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 http://www.wmitchell.edu/TobaccoLaw/resources/SchoenmarklinWeb.pdf.

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 http://www.smokefreeapartments.org/condos.html, 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 (9^th ed) Constitutional Law § 329, Torts §§ 133, 234, 235, 236; Cal Jur 3^rd 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.

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.

CAN I BREAK MY LEASE IF THE MANAGEMENT DOES NOT PROVIDE A SMOKE-FREE HOME?

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.

NEW APARTMENT OWNER BELIEVES NEW LAW PROHIBITS THEM FROM PROVIDING SMOKE-FREE APARTMENTS.

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

A: 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 http://www.smokefreeapartments.org/condos.html 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.

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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 jacque@S-FHC.com or 8810 Brae Crest Dr., San Antonio, TX 78249.