Published on: April 1, 2009
Conflicts between smoking and non-smoking condominium residents aren’t new, but the legal landscape surrounding those battles is changing. As complaints about second-hand smoke have grown louder, and the evidence of its dangers more conclusive, the courts have become more inclined to weigh the rights of homeowners to breathe clean air in their homes more heavily than the rights of other owners to blow smoke in theirs.
This balancing act is difficult, however. Courts do not easily or happily restrict private property rights, so decisions doing so, while almost always fact-specific, get considerable attention and are parsed closely for language and legal reasoning other courts might follow.
Only a few court decisions to date have dealt with smoking in a common interest ownership setting. The most recent of those decisions came, as many harbingers of legal change do, from California, where a state appeals court concluded that smoking constituted both a public nuisance under a local ordinance, and a private nuisance under the condominium documents. Melinda Birke, the plaintiff in Birke v. Oakwood Worldwide, was a child who suffered severe allergic creations when exposed to second-hand smoke. The suit her father filed on her behalf argued that the association had an obligation to ban smoking in common areas, including around the pool, where smoking was permitted. Failure to do so, Birke argued, made it impossible for Melinda to enjoy the amenities to which she was entitled as a resident.
The trial court ruled against her, finding that the second-hand smoke to which Melinda was exposed was not extraordinary and did not rise to the level of a nuisance that the association had an obligation to regulate. The appeals court disagreed, finding that the impact of smoking on Melissa did, in fact, constitute a nuisance. But the key issue in this case, the court said, “is not whether Oakwood has a duty to ban smoking,” but whether the association’s failure to limit smoking in common areas “that Melinda has a right to use and enjoy” breached the association’s “indisputable duty to take reasonable steps to maintain its premises in a reasonably safe condition.”
In what is generally viewed as a seminal ruling in the condominium smoking arena, a Colorado District Court also concluded that the smell of second-hand smoke and its seepage into the unit of a non-smoker represented a nuisance, justifying the community association’s approval of a by-law amendment barring smoking in all units. The smokers in this 2006 case (Heritage Hill Condo Owners v. Sauve), who occupied one of the four units in the community, challenged the ban the other three owners had approved, arguing that it interfered with their right to conduct legal activities within their home. The court acknowledged that smoking is not illegal, but likened it to “excessively loud noise.” Like noise, the court said, smoke can’t be confined within a unit and can create a nuisance for others that the association had the authority to regulate.
Neither the Colorado nor California decisions established binding precedents, but both are significant for different reasons: The Colorado case, because it was one of the first to deal specifically with smoking within a common interest community and the first to affirm the right of a community association to curb smoking within an owner’s home; the California case, because it applied to a community association a landlord’s indisputable obligation to ensure both the safety of common areas and the ability of residents to fully enjoy a building’s common areas and amenities. The two cases provide legal building blocks that condominium owners are likely to use in future cases arguing that associations must restrict smoking or ban it entirely. This is not to say that courts in other jurisdictions will necessarily embrace these arguments, only that many courts will almost certainly be considering them.
The landlord-tenant arguments are particularly interesting, because most of the legal battles between smokers and non-smokers thus far have involved tenants in apartment buildings, several of them in Massachusetts.
- In Donath v. Dadah (1991), a tenant successfully sued her landlord, claiming that second-hand smoke from a neighboring unit triggered asthma attacks. The case was settled for an undisclosed amount.
- In Snow v. Gilbert (1994), a tenant suffering from pulmonary fibrosis won a temporary injunction, barring her landlord from renting the unit below hers to a tenant who smoked, until the ailing tenant was able to find another apartment.
- In Gainsborough St. Realty Trust v. Haile (1998), the Boston Housing Court found in favor of a tenant who had withheld rent, agreeing that the second-hand smoke deprived her of the “quiet enjoyment” of her unit. Asserting that the smoke entering the apartment from the bar below it made the unit “unfit for smokers and nonsmokers alike,” the court awarded the tenant $4,350 in damages.
The Housing Court weighed in on the issue even more dramatically four years ago, ruling in Harwood Capital Corp. v. Carey that apartment tenants could be evicted because their extremely heavy smoking constituted a nuisance for other residents. Although the lease permitted smoking, the court noted, it also prohibited “any nuisance, any offensive noise, odor or fumes; or any hazard to health,” providing legitimate grounds for the landlord to evict the chain-smoking tenants.
Support for Non-smoker
Courts outside of Massachusetts have been equally supportive of non-smokers in tenant v. tenant and landlord v. tenant disputes. In a 1992 decision (Fox Point Apartments vs. Kipples), an Oregon court ruled in favor of a tenant who complained that second-hand smoke exacerbated her respiratory problems, reducing the tenant’s rent by half and ordering the landlord to pay her medical bills. In Dworkin v. Paley (1994), an Ohio appeals court ruled that the presence of second-hand smoke in an apartment represented a breach of the covenant of “quiet enjoyment.” And in a settlement agreement resolving a smoking dispute in a public housing development, the Department of Housing and Urban Development required the owner to insert a no-smoking provision in leases offered to new tenants.
While community associations have not, as yet, been front-and-center in smoking-related litigation, one recent New York case involved tenants renting units in condominiums. In Poyck v. Bryant, tenants (the Bryants) moved out of the unit they were renting, claiming that excessive smoking by a tenant in a neighboring unit created health problems making their unit uninhabitable. When the unit owner/landlord (Poyck) sued to recover unpaid rent under the lease, the Bryants countersued, claiming that the conditions in the apartment amounted to a constructive eviction. A New York Civil Court agreed, finding that the landlord had an obligation to address the tenant’s complaints about second-hand smoke, even if he had no direct control over the behavior of the tenant in the offending unit. According to the court, the landlord should have interceded for his tenants, asking the community association to ban smoking in the hallways and taking other steps to prevent seepage of smoke into the unit occupied by his tenants.
A Florida case (Merrill v. Bosser) also involved a tenant but pitted two condominium owners against each other. Robin Merrill and her family owned a unit near that of Jim Bosser, a pack-a-day smoker. Problems arose when Bosser rented space in his unit to another pack-a-day smoker. The combined output proved too much for the Merrills, who acknowledged that their various respiratory allergies made them “hypersensitive” to the smoke – so much so that they were forced to sleep elsewhere on several occasions. The problem was resolved when the community association ordered Bosser to evict his tenant, not because of the smoke, but because Bosser had failed to obtain board approval for the rental.
The Merrill’s subsequently sued Bosser for the damages they had suffered, and the court affirmed their arguments that the “excessive” second hand smoke went beyond what could be considered “normal and customary,” constituting a “disturbance of possession” that qualified as trespass, a nuisance, and a breach of the covenant of quiet enjoyment. The decision turned on what the court acknowledged to be “the unique facts of this unusual case.” Other courts might draw a different line between what is “normal and customary” and what is “excessive” seepage of second-hand smoke. But that is the legal ground on which future smoking battles are likely to be fought in community associations, where one of the central questions will be whether second-hand smoke constitutes a “nuisance.”
The “Nuisance” Bridge
The authority of landlords/owners to regulate activities within the apartments they own is unquestioned. The authority of community associations to establish rules governing activities in common areas is equally clear, but their authority to restrict activities within an owner’s unit is less certain. “Nuisance” forms the legal bridge that potentially links apartments and common interest ownership communities in smoking litigation.
Most condominium documents prohibit activities that cause a “nuisance” for other residents and allow boards, acting on their own authority, to adopt rules restricting those behaviors. Owners complaining about second-hand smoke will almost certainly argue that second-hand smoke constitutes a nuisance that the association’s board has both the authority and the obligation to control —by barring smoking within units as well as in common areas, if necessary. And they will be able to point to an increasing number of court decisions, several noted in this article, to support their position.
The Massachusetts courts are not on that list, however — at least, not definitively. The Boston Housing Court in Harwood Capital Corp., defined smoking as a nuisance under an apartment lease, but a trial court reached a different conclusion in Lipsman v. McPherson, finding that while the plaintiff in that 1991 case may have been “particularly sensitive to smoke… an injury to one who has specially sensitive characteristics does not constitute a nuisance.”
Times have changed since then; the legal winds clearly have been favoring non-smokers and Massachusetts courts might follow those trends. But a board that acts to restrict smoking in an owner’s unit will almost certainly have to bear the cost and burden of determining where the Massachusetts courts currently stand on the nuisance question.
At the same time, associations must be concerned about their potential liability for failing to prevent nuisances that cause harm to residents of their communities. Owners sickened by exposure to second-hand smoke will almost certainly sue the association as well as their smoking neighbors for damages.
With that concern in mind, boards should take complaints about second-hand smoke seriously and do all they can to work with the owners involved to resolve the problem, by sealing leaks, installing fans and high-powered filters, and pursuing other smoke-mitigation efforts. The association might want to cover some if not all of these costs, in the interests of keeping everyone out of court. Significantly, the benchmark Colorado decision (Suave) upholding a condominium smoking ban, noted approvingly the extensive, though unsuccessful, efforts by the homeowners’ association to deal with the problem through other means.
“There can be no finding that the passage [of the by-law amendment barring smoking] was arbitrary or capricious or done in bad faith,” the court said, noting that “testimony was replete with various occupants’ attempts to minimize or prevent” the seepage of second-hand smoke.
The Suave decision doesn’t tell community associations exactly what they must do, but it suggests clearly that this court, at least, expects them to do something, and possibly quite a bit, to deal with second –hand smoke before denying owners the right to smoke within their homes.
If smoke mitigation efforts fail and boards decide that broad smoking restrictions are needed, they should ask owners to approve a by-law amendment for that purpose rather than adopting a board-approved no-smoking rule. Because they typically require the approval of 75 percent or more of the owners, by-laws are clearly more difficult to enact, but they are also more likely to withstand a legal challenge, as they represent a clear statement by owners of how they want to govern the community in which they live.
Owners may reject smoking bans, as they have recently at two communities I represent, leaving the association without the authority to restrict smoking in an owner’s unit and still vulnerable to the claims of owners harmed by second-hand smoke. But in order to be liable, the board would have to be found negligent. And boards that have tried to find ways to mitigate smoke seepage and have asked owners to approve a smoking ban can argue persuasively that they have done all they were legally empowered to do to resolve the problem..
Whether that argument will prevail against the claims of an owner suffering from exposure to a neighbor’s second-hand smoke remains to be tested. Also still to come are demands for “accommodations” or “modifications” under the Fair Housing Act for disabilities related to or exacerbated by second-hand smoke, which many believe will be the next frontier in second-hand smoke litigation. Again, the key questions will be the standards courts will set for defining smoke-related disabilities and the accommodations they will require associations to make for owners who assert those claims.
Clear guidance from the courts remains multiple legal challenges and probably several years away. In the meantime, boards charged with maintaining something approximating harmony in their communities must try to strike the delicate, difficult and not yet definitive balance between owners who assert that their right to quiet enjoyment entitles them to smoke in their homes, and owners who say their right to quiet enjoyment requires community associations to prohibit owners who want to smoke from doing so.