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AVOID LIABILITY
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A recent court case, Poyck
v. Bryant, found that secondhand smoke drifting between apartments
was a breach of the implied warranty of habitability and was grounds
for a constructive eviction. The judge ruled that the landlord was
responsible for the acts of a third party—the smoking tenant—and
that the landlord should have taken steps to eliminate the secondhand
smoke problem.
Smoking damages your units and is a fire hazard. But did you know that secondhand smoke (PDF) drifting between apartments is a serious health hazard that could make you vulnerable to lawsuits? More than a quarter of Portland-area renters are exposed to a neighbor's tobacco smoke on a regular basis and three-quarters of renters say they are bothered by secondhand smoke (PDF). Non-smoking tenants can bring legal action against the landlord or the smoking tenants under several common law theories (PDF), including:
Secondhand smoke can interfere with disabled tenants' ability to have equal access to and enjoyment of their housing. Depending on the case, certain tenants may be able to use the Americans with Disabilities Act (PDF) and/or the Fair Housing Act (PDF) to bring legal action against landlords for not making reasonable accommodations to protect them from secondhand smoke. Since air-sealing and ventilation technologies (PDF) do not keep out secondhand smoke, the most reasonable way to accommodate tenants may be to create a no-smoking rule or to move smokers and nonsmokers into separate buildings. The American Society of Heating, Refrigerating, and Air Conditioning Engineers (ASHRAE) position statement on secondhand smoke (PDF) says that “Currently, the only way to effectively eliminate health risk associated with indoor exposure is to ban smoking activity.”
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