Question: I am a smoker living in a 12-unit building. The woman upstairs complains that my cigarette smoke is coming into her unit and exacerbating her asthma, so the landlord is talking about making the building nonsmoking. I’ve lived here 10 years, but I’m on a month-to-month lease. Can he do this?

Tenants’ attorney Kellman replies:

The very long tenancy you have generally will not give you any extra rights over a short tenancy. As to the smoke, it is treated like any other intrusion into another person’s space like noise or vibration. While smoking is a lawful activity, like playing a radio or practicing on the drums, it may be restricted when that activity substantially interferes with a neighboring tenant’s use of his/her unit. Cigarette smoke is known to adversely affect health and when that smoke impacts a neighboring tenant with asthma, the landlord may be liable if he fails to act. Under fair housing laws, a landlord must make reasonable accommodations for disabled tenants. This will probably include taking action to limit or eliminate smoke where it can harm a nonsmoking neighboring tenant. That may mean taking the kind of action contemplated by your landlord. A new rule of your month-to-month tenancy (i.e., no more smoking) may be valid after a proper 30-day notice of that rule. Smoking is increasingly being limited (businesses, government buildings, airplanes, hotels, etc.). There seems to be no lawful barrier to prohibit smoking in the home by restrictions from landlords. On the one hand, such a rule should not be an illegal discrimination since smokers are not a protected group, such as race, religion, national origin, etc. On the other hand, such a rule might be considered an illegal discrimination since, if smoking is an addiction, and therefore a disability, forcing one to quit in only 30 days may be detrimental to the smoker’s health.

Landlords’ attorney Smith replies:

Throughout most of the country, tenant-landlord laws require the landlord to balance the rights of smokers against the adjacent tenant’s rights to live in a smoke-free environment. This dilemma places the landlord in a Catch 22 situation. It is clear to me that smoking causes increased wear and tear to the rental property and increased expense to the landlord. Further, if the evidence is that secondary smoke may cause cancer, it is possible that a lawsuit could claim the landlord responsible for failing to take steps to eliminate or evict the smoker. The courts will have to evaluate these issues to determine whether apartment dwellers may be banned from smoking in the rental.

Question: I live in an apartment with a total of eight units, four on each side of a central courtyard. Of these eight units, five of them contain smokers. Since we all have young children we routinely smoke outside. Over the last five years, we have all become close friends, socializing often in the breezeway while smoking. The problem? Recently a new tenant moved in and complains of smoke in the courtyard. The apartment manager issued warning notices to everyone in the building about this problem and insisted that we not smoke outdoors any more. I feel that it is our right to smoke outside. We have been very respectful as far as putting our cigarettes out when the new tenant is walking to or from her door. Please advise us of our rights in this situation.

Tenants’ attorney Kellman replies:

Smokers face more challenges to their lifestyle each day. Smoking has been determined to be an unhealthful practice for the smoker and arguably a health risk to a nonsmoker due to second hand smoke. Generally, as an adult, it is your right to smoke in any location unless prohibited by a law or applicable private rule. As hotels have rooms for nonsmokers, many landlords are seeking nonsmoking tenants. The trend in our society has been more to ban smoking indoors rather than outdoors since smoking outdoors generally does not bother nonsmokers. However, when cigarette smoke enters a rental dwelling from the outside, it now becomes more like an indoor smoking issue. It is like having a bright light beamed in your window or being subjected to excessive noise. It is an unwanted and potentially annoying intrusion. Your right to smoke is not unconditional and absolute. When the smoke interferes with other tenants’ use of their units, that smoking activity may be restricted. While you may feel discriminated against with restrictive laws or rules by landlords, smokers are not considered a protected class (i.e. race, religion, ancestry etc.) so the usual anti-discrimination laws will not help you. It is unlikely that your lease will resolve the matter since it probably does not cover smoking. The best thing to do would be to meet with your friends in a different location that will prevent the smoke from annoying any neighbors. This should make you, your nonsmoking neighbors and the landlord happy.

Landlords’ attorney Smith replies:

The smoking issue has placed landlords in a paradox for years. While I am a landlord’s attorney, I believe that tenants have the right to smoke in the privacy of their own home. After all, this is not an airplane, restaurant or bar. On the other hand, adjacent tenants have the right to be free of secondary smoke, which, according to the Surgeon General, has been determined to cause cancer. There are advocates on both sides of the issue who articulate their positions. Still, the Congress and virtually all state legislatures have not acted on the issue. Landlords are reluctant to pave a new way for nonsmoking buildings knowing that the smokers will rise up and file a class action. However, it is more likely that an adjacent tenant will file a lawsuit based on the inhalation of secondary smoke. To this end, I call on the federal and state legislatures and the courts to balance these concerns and legislate or rule on the issue. Until then, landlords would be well advised to choose the path of least resistance and allow smoking subject to reasonable rules and regulations.

This column on issues confronting tenants and landlords is written by property manager Robert Griswold, author of “Property Management for Dummies,” and San Diego attorneys Steven R. Kellman, director of the Tenant’s Legal Center, and Ted Smith, principal in a firm representing landlords.”

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