Take Complaints About Tenants’ Secondhand Smoke Seriously

According to the Centers for Disease Control and Prevention (CDC), secondhand smoke exposure contributes to approximately 41,000 deaths among nonsmoking adults and 400 deaths of infants each year. Secondhand smoke causes stroke, lung cancer, and coronary heart disease in adults. And children who are exposed to secondhand smoke are at increased risk for sudden infant death syndrome, acute respiratory infections, middle ear disease, more severe asthma, respiratory symptoms, and slowed lung growth.

According to the Centers for Disease Control and Prevention (CDC), secondhand smoke exposure contributes to approximately 41,000 deaths among nonsmoking adults and 400 deaths of infants each year. Secondhand smoke causes stroke, lung cancer, and coronary heart disease in adults. And children who are exposed to secondhand smoke are at increased risk for sudden infant death syndrome, acute respiratory infections, middle ear disease, more severe asthma, respiratory symptoms, and slowed lung growth. In addition, the Environmental Protection Agency has classified secondhand smoke as a Group A carcinogen—an agent that’s known to cause cancer in humans—and the Surgeon General has concluded that there is no safe level of exposure to secondhand smoke.

Even though cigarette-smoking rates have dropped and smoking in public places has been banned in many states, one in four nonsmokers are still exposed to the dangerous chemicals in secondhand smoke, says the CDC. According to a CDC study, more than one in three people who live in rental housing are exposed to secondhand smoke. The study used rental status as a way of identifying people who live in multiunit housing, which is an environment where the issue of secondhand smoke exposure is of particular concern.

This past year, as of Aug. 28, Local Law 147 went into effect. Broadly, this law requires residential buildings with three or more residential units to create a policy on smoking and to share it with current and future tenants. Along with the Smoke Free Air Act of 2002, these laws cover tenant rights and owner responsibilities with regard to smoking in and around applicable New York City residential buildings. As a result of these laws and increased general awareness of smoking’s harmful effects, you may see an uptick in secondhand smoking complaints from tenants. We’ll go over your responsibilities and how to handle tenant smoking complaints.

Tenant Rights and Owner Responsibilities

In passing Local Law 147, the City Council and the mayor stated that their rationale for enacting it was, among other reasons, to “encourage more buildings to adopt smoke-free policies” because “[t]here is no safe level of exposure to [secondhand smoke].” While LL 147 doesn’t prohibit smoking within apartments, nor does it require that any specific prohibitions be included in a building’s smoking policy, it does extend the Smoke Free Air Act, which prohibits smoking in common areas of buildings with more than 10 apartments, to buildings with three or more residential units. Essentially, LL 147 is a disclosure statute, enacted so that prospective tenants can make an informed decision as to whether a building’s smoking policy is one that makes the building a desirable home for them.

Policy creation. According to Local Law 147, a smoking policy is defined as “a written declaration that states in a clear and conspicuous fashion where smoking is permitted or prohibited on the premises of a Class A multiple dwelling.”

In other words, the law doesn’t require housing to be smoke-free. But the policy must address all indoor and outdoor locations of the building, including common areas, dwelling units, common courtyards, rooftops, balconies, patios, and outdoor areas connected to dwelling units. The law requires that owners of buildings with three or more residential units create a policy on smoking and share it with current and future tenants. The policy should explain where smoking is and is not allowed on the property, including all indoor and outdoor locations. It’s important to note that the Smoke-Free Air Act bans smoking tobacco or non-tobacco products and using e-cigarettes in common indoor areas. Common indoor areas of residential buildings include hallways, stairwells, lobbies, laundry rooms, and other work areas of the building used by tenants or by maintenance and building personnel.

However, if a building decides to go smoke-free, the policy would not ban people who smoke from living in the building; it would ban smoking anywhere in the building, including the home. A building may choose to apply a policy on smoking to new tenants, allowing existing tenants to continue smoking inside their apartments. Or an owner could choose to ban only certain kinds of smoking inside units (for example, banning tobacco and marijuana, but not e-cigarettes).

Also, a building may adopt a smoke-free policy but must exempt rent-stabilized or rent-controlled units where the tenant doesn’t agree to the policy. As a result, there may be mixed buildings with some smoke-free units and some exempt units.

Smoking policy disclosure. Buildings aren’t required to register or file their policies on smoking. But owners are required to share their smoking policy by giving it to all tenants individually in writing or posting it in a visible location in the building, such as a building lobby.

In addition, policies on smoking must also be incorporated into all residential unit leases. Owners must also provide an annual notification of the policy on smoking to tenants. If your building’s policy on smoking changes, written notification to tenants must be provided. And copies of all policy documentation, notices, and material changes must be made available to agency inspectors upon request.

Smoking Policy Enforcement

The Health Department won’t enforce building-specific policies. Owners are required to ensure that tenants comply with their policy on smoking. If you discover a tenant defying your building’s smoking policy by smoking in common areas or, if you have implemented a smoking ban, by smoking within his or her apartment, you should treat this action as a lease violation.

By law, the secondhand smoke caused by one tenant defying a building’s smoking policy may also be considered a nuisance by disrupting another tenant’s right to quiet enjoyment of his or her apartment. But unless a tenant is smoking great amounts and numerous witness are willing to testify against the smoking tenant, a nuisance claim will be hard to prove.

In many cases, you may have a hard time finding out whether tenants or guests are smoking in smoke-free areas and an even harder time proving who did it. Also, courts are unlikely to find that smoke from an apartment caused by smoking in the privacy of one’s home, even when smoke emanates to the common areas or other apartments, is a nuisance.

Smoke-free policies are largely self-enforcing, but it’s important to take steps to let your tenants know the consequences for violating the policy. Furthermore, if you don’t try to enforce the policy, a court may later find that you’ve waived—that is, given up—your right to enforce it. So it’s best to enforce the policy consistently among all tenants and enforce it as you would any other lease provision.

When you receive a complaint from a tenant about infiltrating smoke, a staff member should go to the alleged smoker’s apartment to find out what’s going on and to talk to the tenant. The staff member might actually catch tenants smoking in their apartment after they’ve opened the door. At which point, you can remind the tenant of the policy and make a note of the incident in the tenant’s file.

If there’s another complaint, send the offending tenant a letter that there has been a violation of the lease with the date of the violation and instruct him to cure the violation or it may become a legal matter.

If the problem persists, take whatever legal action is appropriate for tenants who violate their leases. In some cases it might be a formal warning, and in others it might be a notice to vacate. Either way, it’s important to follow through so tenants know you’re serious about your building’s smoking policy.

Fair Housing Considerations

Aware of your smoking policy through various disclosures, more tenants may complain of smoking violations. Some of these tenants may tell you that exposure to secondhand smoke exacerbates the tenant’s disabilities such as heart and lung impairments. In fact, these tenants may have moved into your building because of its smoking policy.

In these instances, it’s important to take complaints of secondhand smoke seriously. Whatever your policy about whether and where smoking is allowed in your building, it’s important to address complaints about secondhand smoke, particularly from tenants with disability-related problems with exposure to secondhand smoke. The complaint may be about smoke drifting outside from an adjoining neighbor’s patio or balcony, or it may be smoke infiltrating into a tenant’s unit from neighbors smoking inside their units. Either way, the tenants may demand that you order the neighbor to stop smoking or to move him to another unit.

For reasonable accommodation requests related to complaints about secondhand smoke, you should follow your standard policies and procedures to determine whether the resident has a disability that makes her susceptible to the effects of secondhand smoke. In general, an individual is entitled to a reasonable accommodation or modification when there is a clearly identifiable disability-related need for the requested accommodation or modification. Merely being annoyed by secondhand smoke doesn’t give the tenant any special rights under fair housing law.

Unless the tenant has an impairment that’s obvious or apparent, you don’t have to take her word for it. You’re entitled to request verification from a credible source, such as a health care provider, that she qualifies as an individual with a disability under the Fair Housing Act—that is, she has a physical or mental impairment that substantially limits one or more major life activities. Such determination must be made on a case-by-case basis, depending on the nature of the tenant’s impairment and the severity of her reaction to secondhand smoke.

If you determine that the tenant has a disability-related problem with exposure to secondhand smoke, then the next hurdle is deciding what to do about her accommodation request. How you’ll handle it will depend on the nature of her complaint—and whether her accommodation request is reasonable.

In general, fair housing law doesn’t require you to grant an accommodation request unless it’s reasonable—that is, it doesn’t impose an undue financial or administrative burden on the building or would fundamentally alter the nature of the building’s operations. Though you may reject unreasonable requests, HUD says that owners should do so only after engaging in an “interactive process” to discuss whether there’s a reasonable alternative that would effectively address the tenant’s disability-related needs without excessively burdening the building.

Whether a tenant’s request is unreasonable will depend on your smoking policy—and what the tenant wants. Unless the neighbor is violating the lease, these cases can be difficult to resolve. If your building doesn’t restrict smoking in the apartment, then it’s probably unreasonable to grant a complaining tenant’s request to make the entire property smoke-free. The same goes for complaints about neighboring smokers: Since the neighbor isn’t doing anything wrong by smoking cigarettes, it would be unreasonable to grant a request to order the neighbor to stop smoking or to require him to transfer to another unit.

Though you’re limited in what you can do, you should engage in the interactive process to come up with a reasonable alternative that would meet the tenant’s disability-related need to limit her exposure to secondhand smoke. Put simply, you should talk to the tenant, offer some suggestions, and listen to her preferences. Here are some options if your smoking policy allows smoking within apartments:

  • Offer to have maintenance staff come to her apartment to determine what can be done to improve air quality, though that may not be effective. Research shows that secondhand smoke will intrude into other apartments even when there is mechanical ventilation or air cleaners are installed, according to HUD.
  • Offer the person complaining about secondhand smoke a transfer to an empty apartment, though this may not prevent the problem from recurring unless the neighbors in adjoining apartments agree to sign a smoke-free lease addendum to their leases.
  • Offer an early termination of the lease without penalty to the person making the complaint so she can go live at a property where smoking is prohibited.

Throughout the process, you should keep the complaining tenant advised of what steps are being taken. And be sure to document the complaint, response, and any communications in difficult cases like these because of the risk of a fair housing claim from a tenant dissatisfied with your response to his accommodation request. Be prepared to defend your actions by documenting the process, including all your efforts to find a workable solution that would effectively meet his disability-related problems with secondhand smoke exposure.

Editor’s Note: For further information on this topic, you can download our recently recorded one-hour webinar, How to Deal with Tenants’ Smoking-Related Complaints, presented by attorney Jeremy M. Poland, here.