Drifting Smoke: Apartments & Multi-Unit Residences Randy Kline & Ed Bolen, Staff Attorneys TALC (Technical Assistance Legal Center)

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

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

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

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

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)

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 Nuisance

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

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

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

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

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

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

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

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:

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

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

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

Randy Kline & Ed Bolen, Staff Attorneys TALC (Technical Assistance Legal Center) voice fax Existing Law is Insufficient New Policies are Legal: Focus on the Reality of Enforcement