Smoke-Free Multi-Unit Housing:Is it right for you?

National Multi-Unit Housing CouncilProperty/Risk Management Forum

Dallas, Texas October 29, 2007

Presenter

Michael F. Strande, Esq.Deputy DirectorLegal Resource Center for Tobacco Regulation,

Litigation, & AdvocacyUniversity of Maryland School of Law500 W. Baltimore St. Baltimore, Md 21201mstrande@law.umaryland.edu410-706-1129 · 410-706-1128 (fax)

• SHS in apts affects millions of people • Tenants want smoke-free apartments• Increasing numbers of complaints about

secondhand smoke infiltration in apts• Health risks to tenants and liabilility risks to

landlords• It saves money • It’s legal to do

Why Smoke-Free Apartments?

Why Smoke-Free Apartments?

• Smoke-free homes are the norm, not the exception.

• But, most apartment & condo buildings are not smoke-free.

• A family with a smoke-free policy in their apartment or condo can easily have secondhand smoke intrusions in multi-unit dwellings.

• Secondhand smoke cannot be controlled by ventilation or air cleaning:

– On June 30, 2005, the American Society of Heating, Refrigerating & Air-Conditioning Engineers (ASHRAE) issued their latest position document on secondhand smoke.

– It states: “At present, the only means of effectively eliminating health risk associated with indoor exposure is to ban smoking activity.” www.ashrae.org

Why Smoke-Free Apartments?

Rental Owner’s Concerns

• Return on Investment

• Avoiding Suit

• Transition to Smoke-Free Policy

• Enforcement of Smoke-Free Policy

The Marketplace is Changing

Demand Is Up– 78 % of adults don’t smoke.

– Many willing to pay a premium for non-smoking.

– Tenants research shows no substantial variation in indoor smoking practices by income.

– Many smoking tenants choose to smoke outdoors already.

• In 2006, Campbell DeLong Resources, Inc. conducted a tenant survey in the Oregon metro area.

• Healthy Androscoggin in Auburn, Maine surveyed 850 tenants.

• Twin Cites (MN): random sample survey.• ALA-California in 2004 surveyed 602

apartment residents.

• For more surveys: www.tcsg.org/sfelp/public.htm

Marketplace Surveys

Surveys Results• Results on average show:

– 9 of 10 don’t smoke in their apt. (smokers and non-smokers)

– 3/4 of renters agree: “other things being equal,” they would choose a rental where smoking is prohibited

– 1/2 would choose a non-smoking buildings even if other things are not equal — that is, they would pay a little more, or perhaps be willing to trade out some other convenience, such as proximity to a desired location.

– 4 of 10 would not be comfortable renting adjacent to a smoking tenant.

– 1/2 said they had moved or would move because of secondhand smoke seepage.

Is it Legal?• There is no constitutional “right to smoke”

– All courts considering have found there is no fundamental right to smoke, smoking is not a protected liberty, and smokers are not a protected class of people.

– the act of smoking is entitled to only a minimal level of protection under the Equal Protection Clause. McGinnis v. Royster, 410 U.S. 263 (1973)

• You have a legal right to restrict smoking in all of your property, including units.

– Just like prohibiting pets, loud music, etc.– Policies don’t take anyone’s right to smoke.

They can still smoke – outside.

• Same analysis applies to government subsidized housing.

Is it Legal?

HUD Legal Opinion

• HUD Legal Counsel letter of July, 2003 states that apartment owners are free under federal law to make their buildings totally smoke-free, so long as they “grandfather” current residents who are smokers.

• “Grandfathering” means for a reasonable period, such as until lease renewal.

• “The right to smoke or not to smoke is not a right that is protected under the Civil Rights Act of 1964 because smokers are not a protected class under federal law.”

• Similar letters have been issued from at least 4 other HUD regional offices.

• 47 Public Housing Authorities have implemented smoke free policies across the country, including:

– Santa Barbara Housing Authority, California– Nampa Housing Authority, Idaho– Kokomo Housing Authority, Indiana– Bar Harbor Housing Authority, Maine– Marysville Housing Commission, Michigan– Helena Housing Authority, Montana– Seattle Housing Authority, Washington

HUD Legal Opinion

Benefits of Going Smoke-Free

Reduced Maintenance Costs

• Estimated $500 to $3000 extra to rehab a smoking apartment vs. one vacated by non-smoker.

– Remove residual smell (turn off to new renters)

– Eliminate discoloration to walls or carpets

– Repair burns to flooring

Benefits of Going Smoke-Free

Reduced Fire Risk

• In 2002 an estimated $926 million in damages occurred in apartment fires - of which cigarette smoking is among the leading causes. (Source: NFPA Fire Analysis and Research; Fire Loss in the U.S. During 2002)

• Insurers know this, and some are willing to give discounts to those with non-smoking policy.

• Fire damage can cause apartment units to go off-line for months

• Water and smoke damage to adjoining units can take them off-line, as well

• Former residents have to find alternative housing and probably won’t return

Cigarette Caused Fires

Benefits of Going Smoke-Free

Reduction of Potential Liability

• Increase of Tenant Empowerment – proliferation of information on dangers and public smoking restrictions have made people realize they don’t have to accept the problem.

• Number one complaint from public received by the Center.

• More knowledgeable tenants = more law suits

Reduction of Potential Liability

• Tenants negatively impacted by smoke drift have the right to seek legal action against landlords who do not make adequate provisions to protect them from second hand smoke.

• The ADA and FHA say:– Persons cannot be discriminated against in

workplaces, public places or in housing due to disability;

– having severe breathing problems constitutes a disability (conversely, addiction to smoking is not)

• Therefore, these facilities are required by the ADA and/or FHA (and parallel state statutes) to provide reasonable accommodations to persons with severe breathing disabilities, including possibly making the facility totally smoke-free.

Potential Liability for Smoke Drift

Nuisance• A private nuisance exists when one person

unreasonably interferes with another person's interest in real property.

• Defined as any smoke, smell, noise, gas or fluid which materially interferes with the ordinary comfort of an occupant or injures his property.

• There must be a "continuousness or recurrence” of the things or acts which constitute the nuisance.

Potential Liability for Smoke Drift

Nuisance

• The landlord may also be held liable, even when he is not creating the nuisance, if the landlord actively participates in the continuance or fails to take action to ameliorate the nuisance. Gorman v. Sabo, 210 Md. 155 (1956).

• Failure to fairly and consistently enforce nuisance provisions in current lease language, where awareness of the problem and authority to act exists, may result in adverse judgment.

Potential Liability for Smoke Drift

Warranty of Habitability and Right to Quiet Enjoyment

• Most states provide these by statute or common law.

• As a landlord, you have a responsibility to provide safe housing which is fit for occupancy.

– Should the smoke intrusion cause a tenant to lose use of certain rooms at certain times, the landlord would be in breach because the property is no longer fit for habitation, even where the landlord is not causing the problem.

– In successful cases, plaintiffs have been awarded significant reductions in and reimbursement of rent, and monetary damages for moving and cleaning costs and medical bills.

Potential Liability for Smoke Drift

Recent Smoke Drift CasesPoyck v Bryant, 2006 NYSlipOp 26343– Secondhand smoke drift may form sufficient basis to

proceed with private causes of action for breach of warranty of habitability against landlord for smoke drift from one apartment into another.

Harwood Capital Corp. V. Carey, Boston Housing Court, No. 05-SP00187– Landlord ordered tenants from a one-bedroom rental

Condominium for smoke drift, despite lack of a non-smoking clause in the lease, and landlord statements that smoking would be permitted inside the unit. Court upheld eviction finding smoke drift constituted a nuisance.

Merrill v. Bosser, 12 Fla.L.Weekly Supp. 885b– A Florida Circuit Court found excessive secondhand

smoke drift to constitute an actionable trespass, nuisance, and breach of the covenant of quiet enjoyment. Damages and remedial expenses ordered.

Fox Point Apt. v. Kippes,No. 92-6924,(Lackamas County (OR) Dist. Ct. 1992) – Tenant sued landlord, alleging breach of the statutory

duty to keep the premises habitable and the covenant of peaceful enjoyment. The jury unanimously found a breach of habitability, reduced the plaintiff's rent by 50 percent and awarded the tenant medical costs.

… More Smoke Drift Cases

Implementation• Survey resident to see how they feel about a smoking rule

change.• Make a plan– Will you go totally smoke-free, or will certain wings of the

building be smoke-free?– review existing tenants' smoking status and begin

creating smoke-free blocks of units and possibly all-smoking blocks of units.

• Establish clear policy– Enforcing a policy is a lot less of a headache than

mediating disputes between tenants without a policy in place.

• Hold a Meeting to Inform Tenants

• Amend New Leases – Change the language of your lease to legally include

your new smoke-free policy for apartment complexes or to the “house rules” in Public Housing Authority buildings.

• Reasonable Time for Current Residents

• Promote Your Status – Begin advertising your smoke-free status to gain new

tenants who appreciate a clean air environment.

Implementation

Enforcement

• Enforceable like any other lease condition, through normal means, including eviction.

• You must be prepared to follow through with consequences. – for example, two warnings, then termination

of the lease.

• First Centrum, a major national apartment development & management company, adopted a SF policy for 49 buildings in 6 states with 5,452 units; Most are “affordable” housing.

• Guardian Management LLC, a Portland, Ore.-based real estate investment and management firm has employed a no-smoking policy to approximately 8,000 conventional and affordable housing units across the West.

• Dillon Hall in Kalamazoo, MI adopted SF policy for its 76 units of Section 8 housing.

• Jewish Apartments & Services has over 800 SF units.

• Lutheran Social Services of WI & UP adopted SF policy for parts of Cherry Creek Village Apartments in Marquette; Most are Section 8 units.

Success Stories

This is not about the smoker …

IT’S ABOUT REDUCING RISK, REDUCING COSTS, AND MAKING A HEALTHY

ENVIRONMENT.