Feature Article

Case Shows that Residents Can Object to Smoke from Nearby Unit

Last month, a Boston Housing Court jury ruled that a couple could be evicted from their apartment for heavy smoking, showing that courts are increasingly sympathetic to neighbors who cannot tolerate migrating secondhand smoke.  Erin Carey and Ted Baar, who each smoked a pack a day, were evicted from their apartment after neighbors complained of smoke filtering into their nearby apartments.  A spokesperson for the condominium association stated that the smell of smoke in neighboring units was overwhelming and that one resident feared for the health of her baby.

Notably, even though the lease did not have a provision regarding secondhand smoke, the jury found that Carey and Baar's heavy smoking violated the clause in the lease that prohibited "any nuisance; any offensive noise, odor or fumes; or any hazard to health."  Experts believe that this is the first case in the nation in which a court has found smoking to be a nuisance sufficient to uphold an eviction.

Although this decision does not set binding precedent, Ed Sweda, Senior Attorney at the Tobacco Control Resource Center, says that this case could have a nationwide impact.  "If you engage in an activity that adversely affects your neighbors, then that's grounds for legal action."  According to Sweda, this case could also prompt more landlords to consider making their apartment buildings smokefree.  More information on smokefree apartments is available here.

Cases such as the one against Carey and Baar will continue to be controversial.  A similar case was heard by a jury in Summit County, Ohio in 2004, and it reached an opposite result.  In that case ( Zangrando v. Kuder, CV-2004-01-0173), a condominium owner complained that the person renting the unit next door was smoking heavily on the front porch shared by the two units.  When the renter refused to stop smoking on the porch, the owner filed a lawsuit alleging that the continuous smoking constituted a nuisance (among other legal claims).  The case was tried to a jury, which found in favor of the smoker.

A different result was reached in the earlier case of Dworkin v. Paley, 638 N.E.2d 636 (Ohio Ct. App. 1994).  In that case, the count found that smoking by a landlord may constitute a breach of the "covenant of quiet enjoyment" that is implied in every Ohio lease.  The "covenant of quiet enjoyment" is breached when the landlord "obstructs, interferes with, or takes away from the tenant in a substantial degree the beneficial use of the leasehold."  In Dworkin, the secondhand cigarette smoke from the landlord's first floor apartment caused physical discomfort to the person renting the second floor apartment.  Because of this situation, the renter eventually moved out and filed a lawsuit to recover his security deposit and have the lease declared terminated.  Even though the rental agreement had not promised a smokefree environment, the appellate court found that the landlord's smoking could violate the general covenant of quiet enjoyment.

Although Ohio law on this topic is somewhat unsettled, recent developments in Boston and elsewhere indicate that people who object to secondhand smoke from neighboring units are on increasingly solid legal footing when they complain.   More information on this topic is available from the Smoke-Free Environments Law Project.