Smoke Intrusion - Smelly Inconvenience or Modern Trespass?

Can you imagine having to move out of your home because your apartment or condo was so permeated by cigarette smoke that you were beginning to have the types of health problems that regular smokers subject themselves to? If you live in a condominium or apartment complex, you may be experiencing this yourself. Throughout the country there is a growing movement to stop unwanted secondhand smoke from impacting residents in apartment and condominium complexes. States, such as Utah, have already passed laws that give condominium and apartment associations the authority to prohibit smoking in units, common areas, or the entire premises. Utah Code Unannotated § 57-25-1(h).  As with anything else, as public concern for secondhand smoke in multi-unit dwellings has increased, so have the number of legal actions addressing it, and with marked success.

Courts have found in instances wherein smoke seeps into a condominium or apartment unit via another unit an intrusion has occurred. This should not be read to mean that the occasional smoke blowing into an apartment from an open window means that a tenant or unit owner has grounds to begin legal proceedings. Courts have set out that there is a certain level of interference that must occur that goes beyond mere inconvenience or customary conduct in order to rise to the level of recoverable damages.  A cause of action arises when the smoke becomes an interference that impacts and negatively affects the day-to-day life of a multi-unit dweller. Merrill v. Bosser, No. 05-4239 (Fla. 17thCir. Ct. June 29. 2005). 

What causes of action can be brought, whom they can be brought against, and the available remedies are all case specific. Successful causes of action that have been brought to stop the smoke from entering impacted homes include nuisance, negligence, breach of the covenant of quiet enjoyment, breach of warranty of habitability, battery, intentional infliction of emotional distress, trespass and constructive eviction. Unit owners and tenants have successfully brought suit against Homeowner’s Associations, landlords, and other tenants. There have been instances where there has been monetary compensation, while others have resulted in restraining orders or injunctions. 

One of the more common causes of action brought is a claim for nuisance. While no Courts in the state of South Carolina have addressed whether secondhand smoke is considered a private nuisance, courts in other states have. In Merrill v. Bosser, a Florida County Court addressed this particular question as an issue of first impression when an owner of a condominium brought suit against another unit owner when excessive second-hand smoke was seeping into her unit causing her family to experience physical ailments and, on occasion, to have to sleep elsewhere. The Florida Court relied on a Nebraska Court of Appeals decision, Thomsen v. Greve, 550 N.W.2d 49,55 (Neb. Ct. App. 1996), which held that to “have the use and enjoyment of one’s home interfered with by smoke, odor, and similar attacks upon one’s senses is a serious harm.”The Florida Court held that the plaintiff could recover damages for nuisance because the facts of the case demonstrated an interference with property on numerous occasions that went beyond “mere inconvenience or customary conduct.” (Merrill v. Bosser).

Breach of warranty of habitability is another common cause of action that has been brought in these cases throughout the country in instances when the tenant is renting the property. Every state has an implied warranty of habitability for rental properties, which follows that the premises must be fit for occupation. See S.C. Code Ann. § 27-40-440.  In a Ohio case; Fox Point Apt. v. Kippes, a landlord moved a known smoker into the apartment below a nonsmoking tenant who suffered nausea, swollen membranes and respiratory problems from the cigarette smoke entering her apartment. The tenant sued the landlord, alleging breach of habitability and breach of the covenant of peaceful enjoyment, which the common law implies in every rental agreement. The jury unanimously found a breach of habitability, awarded medical costs and reduced the rent by 50%. (Id.)

 Many tenants also bring a claim for breach of the covenant of quiet enjoyment. While some leases will actually provide an express covenant for quiet enjoyment of the premises, many do not. Despite this, many courts have agreed that the covenant of quiet enjoyment is implied. In a Boston, Massachusetts case, a nonsmoker who was living above a smoky bar withheld her rent when smoke was seeping from the bar into her apartment, depriving her of quiet enjoyment of her apartment. The landlord sued the tenant for failure to pay rent, and the Judge determined that the smoke from the bar below made the apartment "unfit for smokers and nonsmokers alike." Gainsborough St. Realty Trust v. Haile, No. 98-02279, Boston Housing Court (1998).  The judge further found that "the evidence does demonstrate to the Court the tenants' right to quiet enjoyment was interfered with because of the second-hand smoke that was emanating from the nightclub below."  (Id.)  As a result the judge awarded the tenants $4,350. (Id.).  

If you or someone you know is experiencing issues with Smoke Intrusion, please call Epstein & Howell at (843) 735-8423 to schedule a consultation today.

Adam W. Howell, Esquire