Legal Options for Condominium Owners Exposed to …

1 A Law Synopsis by the tobacco control Legal Consortium December 2006. Legal Options for Condominium Owners 5 PCBDDP $POUSPM. Exposed to secondhand Smoke -FHBM $POTPSUJVN. Susan Schoenmarklin Law. health . Justice. This synopsis is provided for educational purposes only and is not to be construed as Legal opinion or as a substitute for obtaining Legal advice from an attorney. Laws cited are current as of August 2006. The tobacco control Legal Consortium provides Legal information and education about tobacco and health , but does not provide Legal representation. Readers with questions about the application of the law to specific facts are encouraged to consult Legal counsel familiar with the laws of their jurisdictions. Suggested citation: Susan Schoenmarklin, tobacco control Legal Consortium, Legal Options for Condominium Owners Exposed to secondhand Smoke (2006).

2 tobacco control Legal Consortium 875 Summit Avenue Saint Paul, Minnesota 55105 USA. Copyright 2006 tobacco control Legal Consortium This publication was made possible by the financial support of the American Cancer Society and the Robert Wood Johnson Foundation. Legal Options for Condominium Owners Exposed to secondhand Smoke Susan Schoenmarklin Introduction Key Points As scientific warnings about the hazards of secondhand smoke Condominium Owners who are grow stronger, Condominium Owners , along with other residents Exposed to secondhand smoke of multi-unit housing, are becoming increasingly concerned about should adequately prepare before drifting smoke from adjacent units. These concerns are justified. taking any Legal action and consider Surgeon General Richard Carmona recently warned in alternatives to a lawsuit such as a comprehensive scientific report that breathing even a little secondhand smoke can be secondhand smoke contains voluntary agreements, arbitration or more than 4,000 chemicals and more than 50 mediation.

3 secondhand smoke is especially hazardous for those who suffer Condominium Owners who can from cardiovascular diseases, asthma or other lung conditions. show that secondhand smoke secondhand smoke can increase the risk of heart disease in exposure limits a major life activity nonsmokers by as much as 60 Children are particularly can utilize the Fair Housing Act, vulnerable. Children Exposed to secondhand smoke in the the Americans with Disabilities home are twice as likely to develop and suffer persistently from Act, and applicable state anti- secondhand smoke also causes acute lower- and upper- discrimination laws to eliminate or level respiratory tract conditions, acute middle ear conditions,5 reduce their exposure. and elevated levels of Sudden Infant Death Syndrome,6 in addition to myriad long-term adverse health effects.

4 It is more difficult to sue the Condominium association for a Many people living in multi-unit dwellings are Exposed neighboring owner 's smoking than involuntarily to secondhand smoke. The California Division of to sue the offending owner due Occupational Safety and health reported that tobacco smoke to the superior resources of the travels from its point of generation in a building to all other areas Condominium association and the of the building [moving] .. through light fixtures, through ceiling additional proof required. crawl spaces, and into and out of doorways. 7 Exposure also occurs in common patios, decks, balconies, exhaust systems, Condominium Owners have hallways, underground parking garages, and recreational facilities.

5 Successfully sued a neighbor Even in buildings with good ventilation, exposure to secondhand for secondhand smoke exposure smoke has been shown to using the common law theories of trespass, nuisance, covenant of quiet This synopsis discusses Legal Options available to a Condominium enjoyment, warranty of habitability, owner Exposed to drifting secondhand smoke from a neighboring and harassment. Condominium unit. Section I describes preliminary steps an owner should take in preparation for any Legal action. Section II It is lawful for a Condominium discusses Legal Options available under the Federal Fair Housing board or association to adopt Act, the Americans with Disabilities Act, and state disability laws. smoking restrictions after the Section III briefly reviews the use of arbitration or mediation.

6 Creation of the Condominium , and Section IV examines Legal theories that could be used in a lawsuit courts are likely to apply such against the neighbor or the Condominium association. The restrictions to Condominium Owners synopsis concludes with observations about the implementation who purchased prior to the change. of smoke-free policies for Condominium complexes.. Section I Preliminary Steps in to be classified as a nuisance, and creates a cause of action against the owner of the The local health Addressing secondhand Smoke department would likely have more information, or in Condominiums Owners could access online Before considering Legal action, aggrieved condo- Aggrieved Condominium Owners can use this minium Owners should become informed.

7 They need information as they work with their neighbors, the to be prepared to discuss the dangers of secondhand Condominium association or the Condominium board smoke and to make available relevant written materi- to try non- Legal means of resolving the problem. A. als on the subject. (Resources cited in this synopsis discussion of such voluntary strategies is beyond the might be a good start.) Aggrieved Owners should also scope of this synopsis. Readers may wish to review the do their best to document what the problem is, where Condominium section of the Smoke-Free Environments the secondhand smoke originates, and how it affects Law Project website to learn more about voluntary them. A letter from the owner 's treating physician (or The remainder of this synopsis addresses pediatrician if children are involved) may be persua- Legal alternatives.

8 Sive. No one, however, should wait for the onset of a health problem before taking action. Section II Disability Claims Aggrieved Owners should also familiarize themselves Under Federal and State Laws with the policies governing their Condominium Obtaining Relief under the Federal Fair complex. Condominium Owners agree to abide by a set of covenants, conditions and restrictions ( CCRs ) that Housing Act define the rights and obligations of Owners , including Condominium Owners suffering severe health effects use of common areas, maintenance responsibilities, from secondhand smoke may be able to obtain relief restrictions on the use of individual units and more. under the federal Fair Housing Act ( FHA ). The In addition, Condominium boards can adopt rules that FHA prohibits discrimination in housing against provide detailed guidance on issues not fully described persons with disabilities, including persons living in in the CCRs, such as rules for using recreational Condominium complexes with more than four facilities.

9 Filing an FHA complaint is an attractive choice because Most CCRs contain a nuisance clause that prohibits it does not require the expense of hiring an attorney. Owners or their guests from engaging in any activity Unfortunately, under current FHA standards only a that interferes with another owner 's peace and well- limited number of nonsmokers Exposed to secondhand being. The nuisance clause is typically invoked by smoke qualify as disabled. To qualify as disabled, residents objecting to late-night parties, offensive the affected person must prove a severe and long-term odors, loud music or other activities generally accepted hypersensitivity to cigarette smoke that substantially by the public as significant annoyances, and can limits one or more major life This is a fairly arguably apply to drifting secondhand smoke.

10 The high standard, which may require proving difficulty Condominium rules may also be The use of breathing or ailments such as a cardiovascular a nuisance clause in the event of secondhand smoke disorder that are caused or exacerbated by exposure to seepage is discussed in detail in Section IV of this secondhand smoke. Consequently, despite the dangers synopsis. of secondhand smoke, a Condominium owner who has Owners should check to see if there are any local or only mild reactions to the secondhand smoke such as state laws governing smoking in their Condominium . itchy eyes or a sore throat probably would not qualify Colorado, Delaware, Hawaii, Maine, New Jersey, for protection under the New York, North Dakota, and Rhode Island A Condominium owner with a hypersensitivity communities prohibit smoking in the common areas to secondhand smoke should first try to reach a of In Utah, Condominium Owners reasonable accommodation with the Condominium are specifically granted the authority to prohibit board before pursuing an FHA Under smoking in units and common areas, including FHA rules, if a Condominium owner is able to prove outdoor Utah also defines by statute what is a qualifying disability, the Condominium board still required for secondhand smoke from a residential unit.