United States: Legal recourse is difficult in case of exposure to tobacco smoke from a neighboring apartment

Enforcing the right not to be filled with secondhand smoke from a neighbor's apartment in your own home is not easy, even in the United States, according to a report in the Washington Post. Legal challenges are lengthy and uncertain for both tenants and landlords.

In the United States, it is not uncommon for rental apartment leases to include clauses requiring no smoking in the home. Enforcing these clauses, however, is difficult, as a survey of residents in the District of Columbia (Washington DC) reveals.[1].

Enforcing rental contract clauses

Tobacco smoke from a neighbouring apartment can infiltrate an apartment in several ways. Collective air conditioning systems, gaps in insulation panels or grooves in floors can allow smoke to circulate from one apartment to another. Some non-smoking apartments can be invaded by second-hand tobacco smoke, which exposes their occupants to the proven risks of exposure to passive smoking.

This neighborhood problem takes on another legal dimension when these dwellings are located in buildings that are supposed to be completely non-smoking. In the event of a complaint from a resident about a tenant's smoking, it is up to the smoker's landlord to enforce the no-smoking clauses in the rental agreement. The procedure leading to the termination of the lease, however, can take several months or even years, during which time the situation continues. A lawyer specializing in this type of case even recommends that complainants move.

Legal battles with random results

In one of these non-smoking buildings, the Washington Post met a resident suffering from a pulmonary embolism whose apartment is filled with smoke, which is making her condition worse. This resident has filed a lawsuit against her landlord, a real estate player. The latter offered her rehousing, which she refused in order to continue to benefit from a housing with rent control. The resident asked an expert to assess the nicotine content in her apartment. The assessment revealed a high concentration of nicotine and a smoke particle rate of 339 micrograms per cubic meter, while the threshold defined as dangerous by the United States Environmental Protection Agency is 225 micrograms per cubic meter. The procedure has dragged on and has now lasted two years. As it progresses, the resident is subjected to intimidation and threatening letters from the tenants causing the neighborhood disturbance.

In the same building, a tenant suffering from kidney failure was offered rehousing in the same building and in an apartment that was still smoky, at a slightly lower level than the one he was leaving.

In a completely different situation, the occupant of a duplex won a case against her neighbor, a medical cannabis user. The latter was required to stop smoking by a "superior" court in Washington DC; however, the level of this court does not allow for the establishment of case law on the matter.

Disparate legislations depending on the state

While laws prohibiting smoking in common areas of buildings exist in 16 U.S. states and territories, none have yet banned smoking in private dwellings. Utah defines secondhand tobacco smoke as a nuisance, which can be prosecuted. Maine and Oregon require landlords to notify tenants if a building has a “no-smoking” policy. The Department of Housing and Urban Development requires all public housing to be declared smoke-free.

Keywords: District of Columbia, apartments, public housing, secondhand smoke, tobacco smoke

©Generation Without Tobacco

MF

[1] Nguyen D, Apartment dwellers plagued by secondhand smoke have little recourse, The Washington Post, published March 15, 2024, accessed March 20, 2024.