Second-Hand Smoke Woes

Posted by wasserman

I own a 15-unit building that is completely non-smoking. I have received complaints from a tenant that she occasionally smells smoke, but cannot tell which unit it is coming from. I have sent non-smoking reminders to all tenants. Do I have any legal responsibility to do anything if I find out who is smoking? Or does it become a tenant vs.tenant issue?

Yes, you have a legal responsibility to ascertain who is smoking. Several years ago, this magazine published an article detailing the findings by the State of California of a fact we have all known about for many years: that second-hand smoke poses a serious danger to those continuously exposed to it. Children with developing lungs are particularly susceptible.

California landlords have a legal duty to protect their tenants from foreseeable harms. This means that if a landlord knows about a condition at the property that may injure a tenant or a tenant’s guest, reasonable steps must be taken to mitigate the situation. In the past, courts have found owners liable for death and injury caused by criminals who are able to access the apartment building because of lax or nonexistent security measures. In one notable case, a landlord who repeatedly ignored a tenant’s request to repair a deadbolt was deemed liable when the tenant was killed by her estranged boyfriend who was able to break into the residence with ease. In another case, a tenant who was assaulted by a robber sued the owner for failing to erect exterior lighting and gates. Similarly, if a landlord knows about toxic second-hand smoke but does nothing to prevent it, then a tenant who suffers injury as a result of exposure may be able to bring a personal injury claim.

Here, the landlord has knowledge of second-hand smoke permeating the common areas. Even if some units in the building were allowed to smoke, the owner must endeavor to find out where the smoke is coming from as non-smoking residents who are inhaling this potentially deadly substance may be suffering harm. Leaving the dispute to the tenants is simply not acceptable. Rather, management must undertake good faith and serious efforts to find out the source, and once the source is discovered, the offending tenant must either stop or face termination of the tenancy.

How the landlord discovers the source may pose a challenge. A good camera surveillance system in the hallways might pick up thick smoke clouds. However, the owner may simply have to wander the common areas at times when the complaints arise in order to literally “sniff out” the origin.

The current SFAA lease contains some protection to address this problem:

Tenant is hereby informed that there may be rental units in the Building where smoking is permitted. Owner shall not be liable for any damages or injury to Tenant’s health or personal property, or any other person’s health or personal property, occurring on the Premises or any part thereof, in connection with the use of tobacco or tobacco products by any other resident or occupant in the Building. Tenant acknowledges that other residents in the Building may be permitted to smoke inside of their units. If Owner has exercised proper diligence in ascertaining and disclosing the location of other units where smoking is, or has been, permitted, this disclosure still may not be accurate either in whole or in part. Owner’s designation and disclosure of non-smoking areas does not make Owner the guarantor of Tenant’s health, or of the smoke free condition of the areas in which smoking is prohibited, or that the Building will be free from secondhand smoke.

Do not rely on this lease language to entirely protect you. Instead, diligently investigate and attempt to rectify the problem before someone claims an injury.