Drifting Smoke: Apartments & Multi-Unit Residences

1. Drifting Smoke:Apartments & Multi-Unit Residences Randy Kline & Ed Bolen, Staff Attorneys TALC (Technical Assistance Legal Center) rkline@phi.org; ebolen@phi.org http://talc.phi.org 510.444.8252

2. Overview • Current imperfect options • Landlord-tenant law • Nuisance law • Voluntary policies • Approach for new policies • Landlord v. tenant • Tenant v. tenant • Tenant v. landlord • Challenges • Proof of secondhand smoke • Fear of retaliation

3. The Health Problem • Dangers of secondhand smoke • Any amount of exposure is unsafe • Exacerbates existing health problems • asthma, respiratory ailments, etc.

4. The Legal Problem • No California law prevents smoking in private residences • But nothing stops a landlord from prohibiting smoking on property now • There is no legal right to smoke

5. Current Law: Limited Options • General landlord-tenant law • Existing nuisance law • Voluntary strategies: Landlord can already prohibit smoking • See TALC “Fact sheet on Drifting Smoke in Apartments

6. General Landlord-Tenant Law • General laws used by tenant if something is wrong with their living situation • Duty to maintain safe premises (no dangerous conditions – includes SHS?) • Warranty of habitability (basic living conditions – includes clean air?) • Covenant of quiet enjoyment (no interference with use)

7. Nuisance • Definition: • Anything that is injurious to health, indecent, offensive to the senses • Substantial interference with the enjoyment of life or property • Does not explicitly include secondhand smoke • Remedy: • Court order to stop smoking • Recovery of any damages (hard to prove?) • Enforcement • Tenant must file a private lawsuit in civil court

8. Limits of Nuisance • Not widely used for secondhand smoke • Not easy for a non-lawyer to use • How much smoke? How often?

9. Voluntary Strategies • Read the lease: • A “nuisance clause” may prohibit activity that interferes with another’s peace and well-being • Disclosure and notice by landlord • Negotiate an agreement informally • Request mediation • Ask landlord to prohibit smoking • in units in the lease (as leases expire) • in common areas

10. The Need for New Policies • Existing law is insufficient to fully protect non-smoking tenants • Prohibiting residential smoking is legal • There is no basic right to smoke • Local governments can protect non-smokers by passing new laws • New policies must deal with the difficult fact that disputes are between neighbors, not strangers

11. New Policies: What Approach? • Landlord v. Smoker + Nonsmoker need not act - Landlord may not care, concerned with liability - Neighbor may retaliate • Tenant v. Tenant + Deals directly with source of problem - Fear of retaliation from neighbor • Tenant v. Landlord(landlord fails to protect tenant) + Avoids retaliation by neighbor - Fear of eviction or retaliation by landlord

12. New Policies: Landlord v. Smoker • Local Ordinance could: • Clarify rights of landlord • To prohibit smoking in lease • To charge more for smokers • Require landlord to post signage and take reasonable steps to enforce • Possible Disclaimer: no guarantee by landlord of smoke-free unit, only that required steps are taken

13. New Policies: Tenant v. Tenant • Local ordinances: • Prohibit smoking in common areas • Make a violation a misdemeanor or infraction • Public enforcement (e.g., police enforce) • Define “nuisance” to explicitly include SHS • Provide that tenants can go to small claims court • Private enforcement • Establish a mediation procedure to resolve disputes • Could be binding or non-binding

14. New Policies: Tenant v. Landlord • Require landlord to disclose neighboring smokers • Challenge: what if a neighbor starts to smoke? How does landlord know? • Make drifting smoke a breach of the lease: • Breach of the “warranty of habitability” • Breach of the “covenant of quiet enjoyment” • Failure to prevent nuisance • Define nuisance to include drifting smoke

15. State Legislation: AB 210 • What it would do: • Declare drifting smoke in a condominium to be a nuisance unless agreement allows smoking • Prohibit smoking in common areas of condominiums and multi-unit residences • Prohibits smoking in units of multifamily housing, except if designed smoking • For more info: www.leginfo.ca.gov

16. AB 210 continued • What it would not do: • If lease explicitly permits smoking, then no nuisance exists • Smoking is prohibited in multi-unit residences unless landlord opts out • Enforcement

17. New Policies: Thinking Outside the Box • Combine previous options into a graduated system of enforcement • Require a certain number of smoke-free units or buildings • Make retaliation for SHS complaints carry significant penalties • Place the burden on smoker to prove no SHS in neighboring unit

18. Challenges • Measuring SHS exposure • Design laws so that proof of any exposure is sufficient • Proving a particular level of exposure could be impossible • Overcoming fear of retaliation • Design laws to insulate non-smokers • Make retaliation a serious offence • Impose criminal sanctions • Make retaliation a basis for immediate eviction and forfeiture of deposit

19. Existing Law is InsufficientNew Policies are Legal:Focus on the Reality of Enforcement Randy Kline & Ed Bolen, Staff Attorneys TALC (Technical Assistance Legal Center) rkline@phi.org; ebolen@phi.org http://talc.phi.org 510.444.8252 voice 510.444.8253 fax