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Smoke ENDERS
IF YOU SMOKE, YOUR HOME MAY NO LONGER BE YOUR CASTLE.
Common Ground, March/April 1997
P. MICHAEL NAGLE AND CRAIG B. ZALLER
Where there's smoke there's cigarettes--and a neighbor filing
a nuisance suit.
Americans have long believed that "a man's home is his
castle." They've believed that any person may engage in
any activity within the walls and privacy of a home. This, of
course, is not true. Whether you live in a single-family home,
townhouse, condominium, or cooperative, a myriad of activities
are no longer permitted at home. You cannot provide living accommodations
to your large extended family because of occupancy limits. You
cannot make exterior architectural changes. You cannot host a
loud party that disturbs the neighborhood. You cannot even cook
certain foods if they create offensive odors. These and many
other activities are prohibited by law, ordinance, covenant,
bylaw, or rule. Our castles are no longer inviolate.
Smoking may be the next activity under fire. The current anti-smoking
sentiment in America--coupled with a rash of anti-smoking legislation
and an increased knowledge of the dangers of second-hand smoke--may
eliminate the last refuge of diehard smokers: their own homes.
In January, New York joined 19 other states that have sued tobacco
companies to recover health care costs associated with smoking.
Individuals--or their estates--have launched successful suits
against those companies to recover damages for their failed health.
Office and factory workers have filed suit against employers
or fellow employees alleging damage from second-hand smoke. Smoking
may eventually pit children against parents, sibling against
sibling, spouse against spouse. It may not end until smoking
is banned everywhere.
New laws are establishing smoke-free workplace environments,
smoke-free passenger aircraft, smoke-free restaurants, and smoke-free
public buildings such as courthouses, malls, sports arenas, and
stadiums. At least one local jurisdiction has tried to ban smoking
anywhere in public, including streets and sidewalks. The furor
over smoking is growing and the clamor for more restrictions
is nearing crescendo proportions.
But those laws deal with smoking in public, which would indicate
that smoking is safe in the confines of your home--especially
if you own that home. That may be true if you own a detached
single-family house or even a townhouse that shares only a common
wall with its neighbors. However, if your castle is a condominium
or cooperative that shares ventilation equipment or ducting with
other units, or if it's a unit with penetrations for pipes and
conduits and wiring, your smoke may travel to other units--and
it may be offensive or annoying to others.
Because covenants and bylaws typically prohibit nuisances,
community associations may be the first battlefield in the war
against smoking at home. It is those covenants and bylaws that,
potentially, will provide associations with a legal short cut
if they file litigation.
Community associations have had these covenants and bylaws
for years. In fact, older documents usually have the strongest
provisions against a nuisance or annoyance, or against noxious
or offensive activities. Why are community associations only
now using these provisions to prevent smoking? Because the time
is right. The time is right because of our expanding knowledge
about the dangers of second-hand smoke. Because of the overwhelming
anti-smoking sentiment in the country. Because of tough new laws
against smoking. Because we are increasingly willing to take
legal action to stop others from causing economic harm--or physical
harm.
The courts are full of new cases asking for novel rulings
to protect what plaintiffs deem their individual rights. These
cases are proceeding even though judges are taking tough stances
on frivolous cases, throwing them out of court and imposing monetary
sanctions against the parties and their attorneys.
The law, however, is clear a case is not frivolous simply because
it's novel or innovative.
IS SMOKING A NUISANCE?
In 1992, the Environmental Protection Agency (EPA) classified
second-hand smoke as a Group A carcinogen--a known cause of human
cancer. EPA statistics show that several thousand nonsmokers
die each year because of their exposure to second-hand smoke.
Passive smoke has been conclusively linked to respiratory problems
in infants and children. These and other health-related concerns
raise a legitimate legal issue: does second-hand smoke constitute
a nuisance? Is it a noxious and offensive activity that may be
prohibited, even if the smoke emanates from a private residence?
The answer may be yes.
Associations have used nuisance provisions to stop residents
from a variety of activities, such as playing a stereo too loud,
creating a junkyard, and running a massage parlor. Although each
state has a common law cause of action for nuisance, association
documents create a "contract" that requires each owner
to agree that he or she will not create a nuisance. Hence, the
document provisions prove that residents have a duty to act in
a certain way. Neighbors must only show that the activity they
complain about is substantial, that it unreasonably interferes
with the use of their property, and that it would be offensive
to a reasonable person.
Most documents and local law allow an aggrieved resident to take
legal action to enforce a covenant or bylaw provision prohibiting
nuisances. It is equally likely, however, that the resident will
complain to the association and suggest that the board enforce
the covenant or bylaw. Generally, association directors--as required
by the documents and common or corporate law--have a fiduciary
duty to enforce all lawful provisions of the documents. To fulfill
this duty, the board must evaluate the complaint to determine
whether, in its judgment, the activity actually creates a nuisance
and violates the documents.
If so, the board may wish to open hearings. It will be important
to collect facts concerning the frequency and severity of the
smoke, how the smoke travels from one unit to another, potential
means of abatement (including whether any abatement work will
be done to unit components or common elements, and whether the
the association or the smoking owner will be responsible for
the costs), and other factors, such as specific health concerns.
Obviously, if the person inhaling the second-hand smoke has a
respiratory condition, such as asthma, the problem should be
resolved immediately.
Associations cannot take action only if the smoke affects
residents with asthma or emphysema. The second-hand smoke issue
is not about people who are specifically affected because of
health considerations. It is about the detriment to otherwise
healthy people. A board's duty to act will be based on whether
second-hand smoke creates a nuisance to normal people.
Can a board find that second-hand smoke is not a nuisance?
This may become a hot legal issue for associations. On the one
hand, offensiveness, in this case, is in the eyes and nose of
the offended. It is not subject to second-guessing by the board.
The body of knowledge on second-hand smoke is so extensive and
so persuasive that no reasonable board could find that smoke
entering a unit is not a hazard to the occupants. If it is a
hazard to residents' health or offensive to their senses, the
board will need to recognize the nuisance and take appropriate
action.
On the other hand, the board may find that the frequency or
severity of the smoke is so slight that it doesn't constitute
a nuisance. If, for example, smoke is present less than once
a month or only once every week, it might not be a nuisance.
Similarly, if the smoke emanates from a unit equipped with a
special filtration system, and if limited amounts of smoke are
transmitted to another unit (assuming this can be quantifiably
determined), the board may find that no nuisance exists. If smoke
drifts into a unit only when the wind blows from a certain direction,
the board could ask the offended household to close their windows
at those times.
For now, boards will make these decisions without the benefit
of direct statutory or case law. This may change in the very
near future.
A CARTON OF LAWSUITS
On January 23, Lane Beattie, president of the Utah State Senate,
introduced Senate Bill Number 49. This bill would amend the Utah
Condominium Act. It specifically states that "restrictions
regarding the use of units may include prohibitions on the generation
of environmental tobacco smoke that drifts into any other unit."
It defines a nuisance as "anything which is injurious to
health, indecent, offensive to the senses, or an obstruction
to the free use of property, so as to interfere with the comfortable
enjoyment of life or property." This includes any tobacco
smoke that drifts into a room once or more in consecutive seven-day
periods, and offends the residents of those rooms.
This legislation--if it becomes law--will have an immediate
affect on the ability of Utah associations and residents to obtain
an injunction against second-hand smoke. It creates a legal presumption
that smoke is a nuisance. It also allows condominium associations
to amend their bylaws to specifically prohibit smoke that drifts
into other units. If an association can prove that smoke will
drift one unit to another, this legislation could, possibly,
allow residents to amend the bylaws to prohibit smoking in a
unit altogether.
Some analogous case law exists concerning rental apartments.
In Fox Point Apt. v. Kippes, No. 92-6924, (Lackamas County, Oregon,
District Court, 1992) a landlord moved a known smoker into the
apartment below a nonsmoking tenant. The nonsmoker began to suffer
nausea, swollen membranes, and respiratory problems as cigarette
smoke entered her apartment. The tenant sued, alleging that the
landlord had breached his statutory duty to keep the premises
habitable. A six-person jury unanimously found a breach of habitability,
reduced the tenant's rent by 50 percent, and awarded her money
to cover her medical bills.
In Snow v. Gilbert, Docket No. MICV94-07373 (Middlesex County,
Massachusetts, Superior Court, (1994), a woman suffering from
pulmonary fibrosis and CREST, a form of scleroderma, won a temporary
injunction against her landlord. The injunction prevented him
from renting the units below hers to smokers until she found
a new apartment.
Two 1996 cases filed in the Superior Court of Los Angeles
County have a more direct effect on community associations. First,
in Layon, et al v. Jolley, et al, No. NS004483, the plaintiff
sought an injunction prohibiting harassment. According to the
complaint, the plaintiff's condominium sits above a garage where
the defendant smokes marijuana, cigarettes, and cigars. The plaintiffs
claim they're forced to evacuate their home every time the defendant
smokes. The court issued a restraining order, specifying that
the defendant cannot smoke in the garage.
In Platt v. Stella Landi, et al., No. B952452, a nonsmoking
owner of a condominium unit is suing his downstairs neighbor
and the condominium association because of smoke that drifts
through his open windows. He is seeking to prohibit his neighbors
from smoking anywhere in the development or from smoking in their
condominium, except with the windows closed and under certain
conditions. The plaintiff also wants to prohibit the leasing
of adjacent condominiums to smokers. The case has not yet gone
to trial.
THE NEXT BATTLEFIELD
These cases are a harbinger of the hundreds that are likely to
be filed in the coming months and years.
Because of covenant and bylaw prohibitions against nuisances,
and because of construction that allows smoke to drift from one
unit to another, community associations--especially condominiums
and cooperatives--may be the next battlefield in the war against
smoking. More states will propose legislation like that in Utah--and
perhaps legislation that prohibits smoking in a unit if even
one resident complains. Smoke-free associations may surface,
either as a marketing ploy by progressive developers or as associations
amend their documents.
The Constitution does not guarantee Americans the right to
smoke in their homes. No such statutory right exists, either.
The right of individuals to engage in activities that risk their
health does not include the right to jeopardize the health of
their neighbors.
As tobacco companies target children, the anti-smoking movement
continues to grow and gain strength. Battles will be fought in
the legislatures, the courts, the workplace and the home--and
in common-interest communities. Unfortunately, thousands of individual
battles will also be fought each year--in hospitals and nursing
homes. Many of the individual battles will be lost, with the
stakes always being life or death.
Tips for Snuffing Out Second-Hand SMOKE
If cigarette smoke is seeping into a neighbor's unit, a lawsuit
isn't the only way to snuff out the problem. Consider the following
alternatives:
1. Allow smoking only in certain rooms within a unit, with
the window open or closed, depending on the ventilation system.
2. Allow smoking only during certain hours.
3. Add or modify fresh air intake into the ventilation system.
4. Regularly change and clean air filters, or install filters
designed to alleviate smoke.
5. Route the air exhausted from smokers' homes directly outdoors
through the ventilation system.
6. Encourage residents who smoke to purchase smokeless ashtrays
or air smoke digesters.
7. Reset molding and caulking and seal all holes and cracks
that may allow cigarette smoke to enter a neighbor's home.
8. Install door sweeps and weather stripping.
P. Michael Nagle is a principal and Craig B. Zaller is an
associate with the law firm of Nagle and Associates, Chartered,
in Columbia, Maryland. The authors wish to thank Marla Rothouse,
Esq., of the National Conference of State Legislatures' Health
Policy Tracking Service in Washington, D.C., for her invaluable
assistance.
What Do You Think?
Is second-hand smoke a nuisance--and a potential problem
for community associations? Send your thoughts and opinions to
Common Ground, CAI, 1630 Duke St., Alexandria, VA 22314. Fax:
(703) 836-6907. E-mail: caikmb@ix.netcom.com.
This article originally appeared in the March/April
1997 issue of Common Ground magazine, published by the
Community Associations Institute. Reprinted with permission.
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