More and more, residents are voicing their concerns about their neighbors’ tobacco smoke and the annoyances, discomfort, and illnesses it can cause.

If you have been exposed to secondhand smoke in your apartment, there are steps you can take to protect your home and your health, including taking your issues to the courts.

Talk it out.
Safeguard your space.
Exercise your rights.

Talk it out.

Though legal action is available as a last resort, often your concerns and problems with secondhand smoke can be resolved by talking to your neighbors and your property manager or owner. Before you consider taking legal action, you should take the following steps:

• Speak to your neighbors who smoke. Simply asking them to smoke outside or to avoid smoking in common areas may be all it takes to resolve the problem.
• If neighbors continue to smoke inside, ask them to consider smoking only near open windows and with fans running.
• Download the Smoke-Free Housing Toolkit for Residents for more tips and suggestions on making your home smoke-free.

Click here to let your property manager or owner know about the Smoke-Free Housing Registry.

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Safeguard your space.

You can prevent smoke from entering your apartment or condominium by:

• Filling any openings in the floors or walls with tape, foam, or caulk
• Installing pads or seals around electrical outlets and switches
• Weatherproofing doors and windows with weatherstripping
• Opening the windows to let smoke out and bring in fresh air
• Installing door flaps to keep smoke from moving beneath doors

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Exercise your rights.

After discussing your concerns with neighbors and your property manager or owner, if secondhand smoke is still a problem, it may be time to take legal action.

Across the United States, residents have brought their concerns to the courts. Some of the issues are resolved via out-of-court settlements, and others have resulted in verdicts in favor of one party or the other. The good news is that as the evidence regarding the dangers of secondhand smoke has become undeniable, courts have become more likely to favor nonsmokers exposed to secondhand smoke.

If you have a disability that’s aggravated by secondhand smoke, you may also have additional protections under the Americans with Disabilities Act and the Fair Housing Act. Click here to learn more.

Administrative Proceedings

Administrative proceedings can provide a faster, less expensive approach to resolving secondhand smoke issues than going to court. Local authorities in all states have a responsibility to protect public health, and they can help resolve disputes by enforcing sanitary and housing codes, property manager/resident regulations, and municipal codes.

While exposure to secondhand smoke is not listed as a specific violation of any of Ohio’s codes, it may be covered by the ‘catch all’ clauses that give authorities the right to remedy other health problems not specifically stated in the codes.

For example, exposure to secondhand smoke against your will may be considered a violation of Ohio Revised Code, State and Local Building Codes, and State Sanitary Codes.

Types of Legal Actions

Exposure to secondhand smoke may violate some of your rights as a resident. If you have been exposed to secondhand smoke against your will, you may be able to use one or more of the following legal theories to support your claims against a property manager or owner:

Breach of covenant of quiet enjoyment:
This covenant is implied in every lease contract for real estate. It protects your right to peaceful and undisturbed enjoyment of your leased property. The covenant may be breached if your apartment becomes unsanitary (for example, filled up with secondhand smoke). Should a court decide that a property owner has breached the covenant because of secondhand smoke, you would not be obligated to pay rent. Though this common law theory has not had much success in Ohio secondhand smoke cases, it has had success in other jurisdictions and an Ohio appellate court has ruled that it could apply to secondhand smoke cases.

Negligence:
Negligence is carelessness that violates a legal duty, and you can claim negligence if you can prove that your property manager or owner or another resident caused injury to you by not taking reasonable care to maintain your rental property. For example, in a secondhand smoke case, you could argue that allowing secondhand smoke to drift into your home is negligent.

Nuisance:
A condition, activity, or situation, such as loud noise or foul odor, that interferes with your use or enjoyment of your property is legally considered a nuisance, especially if it is a persistent activity. Utah treats residential secondhand smoke as a nuisance.

Implied warranty of habitability:
In a residential lease, the warranty of habitability is a commitment from the property manager or owner to the resident that the leased property is fit to live in and that it will remain so during the term of the lease. Ohio courts have stated that the lease agreement between a property manager or owner and resident is essentially a contractual relationship with an implied warranty of habitability. Failure to comply with the housing code (for example, by allowing secondhand smoke to drift into residents’ homes) may be both a criminal offense and a breach of warranty of habitability to residents.

Battery:
In civil law, battery is described as an intentional and offensive touching of another without lawful justification. If a neighbor is purposefully directing secondhand smoke into your apartment, the exposure may be considered to be battery. In a 1994 Ohio case, blowing smoke in the face of another person was found to constitute battery.

Trespass:
Trespass is an unlawful act committed against another person or a person’s property, especially wrongful entry on another’s real estate property. Trespass can occur when secondhand smoke enters your private home and causes an injury, such as coughing, annoyance, aversion to the foul odor, discontinued enjoyment of your home, or harm to your physical or mental health.

Constructive eviction:
A constructive eviction can happen when a property manager or owner makes a property unfit for occupancy, and you are compelled to leave the building for extended periods of time or permanently, even though you haven’t been formally evicted. If you have ever had to leave your apartment because of excessive secondhand smoke entering your home, this is a theory you may want to consider.

This list provides some examples of common law theories, but you should consult your lawyer for more information before you take any legal action.

Click here for more information about legal options to address drifting secondhand smoke.  Please note, though, that this fact sheet was developed by the Tobacco Assistance Legal Center in California and focuses on California law.  Ohio law is similar but may differ in important respects.

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