Smoke-free condominiums are becoming the wave of the future. As the serious health effects of environmental tobacco smoke (ETS), or secondhand smoke, have become better understood, the seepage of ETS into condominiums has emerged as a growing area of controversy for condominium owners, sub-letters and condominium associations alike. Clearly, virtually all owners find secondhand smoke which enters their residence from their neighbors to be an annoyance and a discomfort, but for some persons it is also a cause of serious illness or the precipitant of significant health problems. For condominium associations, the issue of ETS seepage creates unwanted concerns and tensions, but also potential legal and liability problems, as evidenced by the increasing number of lawsuits resulting from these situations.
In this section of the SFELP web site, we have included information on methods of addressing these issues. We have presented suggestions for dealing amicably with these situations, and we have also reviewed the types of legal actions and theories which can be pursued when all else fails. We have also provided direct links to other web sites which have relevant information on this issue. Additional materials will be added to this site on a regular basis. The information provided herein is written for a wide range of audiences, including owners, sub-letters, condominium associations and the legal profession. These materials and links to other sources are provided for informational purposes only and are not intended to be and should not be construed as legal advice.
SFELP has also developed two web sites devoted to smoke-free apartment issues and information. One is our award-winning MISmokeFreeApartment web site which includes detailed information on reasons why smoke-free apartments make sense for landlords and tenants and are in conformity with the law. The site also includes a Listing of Smoke-Free Apartments in Michigan. To access the overall site at http://www.mismokefreeapartment.org, click here. To access the Smoke-Free Apartment Listing at http://www.mismokefreeapartment.org/listing.html, click here.
In addition, the SFELP site contains a section on ETS & Apartments which has a wealth of information on this topic, as well as links to a substantial number of other materials and web sites devoted to this topic. To access the site, click here.
The SFELP site includes a section titled Public Opinion Surveys on Smoke-Free Apartment Topics which has links to a number of surveys completed in recent years to determine public support for various types of smoke-free apartment policies. To access these, go to the Public Opinion on Smoke-free Environments section by clicking here and scrolling down to the section.
FACT SHEET: A SMOKE-FREE CONDOMINIUM POLICY IS LEGAL AND PROTECTS HEALTH WHILE SAVING MONEY
A 2-page Fact Sheet of the above title has been prepared by SFELP to provide succinct information about the rights of condominium owners and associations to adopt smoke-free policies for their condominium buildings. The Fact Sheet also provides basic information about health reasons for adopting smoke-free condominium policies. It also points out why it makes economic sense for owners to vote to adopt such policies, and it concludes by pointing out that enforcement is generally not an issue. To access the Fact Sheet, in pdf format, click here. For a more detailed discussion of these issues, see the memorandum described directly below.
ANALYSIS OF THE VOLUNTARY AND LEGAL OPTIONS OF CONDOMINIUM OWNERS CONFRONTED WITH SECONDHAND SMOKE FROM ANOTHER CONDOMINIUM UNIT
In May, 2006, SFELP issued an analysis of the above title, which was prepared by SFELP Consulting Attorney Susan Schoenmarklin (this is a revised version of a February, 2006 memo on this topic). This analysis is one of the most comprehensive reviews done of the strategies for mitigating the dangers of secondhand smoke in condominiums. The memo covers the following major topic areas: 1) an introduction to the issues; 2) the preliminary steps that can be taken in addressing secondhand smoke seepage in condominiums, including measuring exposure to secondhand smoke; 3) voluntary strategies for mitigating secondhand smoke in condos, including working with condo management, boards and associations; 4) disability claims under federal and Michigan laws, including use of the Fair Housing Act; 5) filing a lawsuit over secondhand smoke seepage into your condo, including a discussion of existing case law on this topic; and 6) a discussion of whether condominium associations in Michigan and elsewhere have to "grandfather" existing smokers if they adopt a smoke-free policy. While the analysis gives special consideration to Michigan law, since SFELP is based in Michigan, the analysis will be very valuable for persons in other states, as well. To access the 28-page analysis, in pdf format, click here.
LEGAL OPTIONS FOR CONDOMINIUM OWNERS EXPOSED TO SECONDHAND SMOKE
In December, 2006, the Tobacco Control Legal Consortium published a Law Synopsis of the above title which was written by SFELP Consulting Attorney Susan Schoenmarklin. This analysis examines legal options potentially available to condominium owners who have secondhand smoke seeping into their unit from adjoining condo units. The analysis discusses types of legal actions which can be considered, as well as the outcomes of some lawsuits which have been litigated. Also discussed is the option of having the condo association adopt a total smoke-free policy for all units. To access the Law Synopsis, in pdf format, click here.
INFILTRATION OF SECONDHAND SMOKE INTO CONDOMINIUMS, APARTMENTS AND OTHER MULTI-UNIT DWELLINGS
In April, 2004, the Tobacco Control Legal Consortium, of which the Smoke-Free Environments Law Project (SFELP) is a founding member, published a "law synopsis" of the above title which discusses legal remedies available to tenants and landlords concerned about secondhand smoke infiltration. The article was written by SFELP Consulting Attorney Susan Schoenmarklin and can be accessed by clicking here.
POWERPOINT: SECONDHAND SMOKE LITIGATION IN MULTI-UNIT HOUSING
On October 27, 2006, SFELP Consulting Attorney Susan Schoenmarklin gave a presentation of the above title at the Waiting to Exhale? The Future of Tobacco Litigation conference in Columbus, Ohio. This presentation reviews the current status of litigation involving victims of secondhand tobacco smoke intrusions in their apartment or condominium units. It also provides background information on the health risks of secondhand smoke and their relevance to such litigation. To access the 43-slide PowerPoint presentation, click here.
SECONDHAND SMOKE IN APARTMENTS & CONDOMINIUMS
SFELP has developed a concise analysis of the options available to the resident of an apartment or condominium who is exposed to secondhand smoke against his/her will. This includes a review of the legal options available and recent legal cases involving secondhand smoke entering such residences. This information is also valuable for the owners of such properties in that it presents many of the potential liability issues faced by an owner who allows smoking in his/her building. To access this analysis, prepared in July, 2000, click here.
THE FEDERAL FAIR HOUSING ACT AND THE PROTECTION OF PERSONS WHO ARE DISABLED BY SECONDHAND SMOKE
The federal Fair Housing Act (FHA) prohibits housing discrimination based on race, color, religion, sex, family status, national origin, or disability. The FHA, among other things, prohibits discrimination against people with disabilities, including those with severe breathing problems which are exacerbated by secondhand smoke. The FHA prohibits such discrimination by owners and operators of most housing, including most apartments and Section 8 and other HUD-assisted housing. The FHA is also available to residents in condominiums with more than four (4) units. It is clear from the language of the FHA, its interpretation by HUD General Counsel, and court decisions, that the FHA is available to people with breathing disabilities to seek reasonable accommodations from owners and operators of most housing in the United States in order to address the serious health hazards posed by secondhand smoke which infiltrates their housing. A detailed analysis of this issue by the Office of the General Counsel of the U.S. Department of Housing and Urban Development (HUD) was prepared in 1992 and is still in effect; a copy may be accessed from the HUD site by clicking here. For a link to HUD's online complaint form which can be filed directly, click here. For a link to download the HUD complaint form, in pdf format, so that it can be sent to a HUD office, click here. To access an analysis by SFELP of the FHA and how it can be used to protect persons who have breathing disabilities which are caused or exacerbated by secondhand smoke in their housing situations, click here.
MICHIGAN ATTORNEY GENERAL'S LEGAL OPINION: PRIVATELY-OWNED APARTMENT COMPLEXES CAN BE SMOKE-FREE
This is a link to a 1992 Legal Opinion of the Michigan Attorney General which examined the issue of whether privately-owned apartment complexes could be either entirely smoke-free or have certain buildings in a complex be smoke-free. The Attorney General concluded as follows: "It is my opinion, therefore, that neither state nor federal law prohibits a privately-owned apartment complex from renting only to non-smokers or, in the alternative, restricting smokers to certain buildings within an apartment complex." There has been nothing enacted in Michigan or federal law since this opinion was written which would overrule this opinion. While this opinion deals specifically with apartments, it has some applicability to condominiums, as well. To access the opinion, click here.
LEGAL RESEARCH REGARDING SMOKE-FREE BUILDINGS, INCLUDING COURT DECISIONS AND HUD/FAIR HOUSING ACT DECISIONS PERMITTING SMOKE-FREE APARTMENT BUILDINGS
This is a link to an excellent Legal Research report containing a wealth of cases and information on smoke-free buildings, including apartments, and the law. Note that Appendix 2 to the report contains a bountiful number of cases, including ones utilizing the Fair Housing Act (see paragraph above on the FHA) to obtain smoke-free buildings, and other using common law theories to do the same. The page also contains two surveys: Secondhand Smoke in Apartment Buildings - Owners Survey and Renters Survey. These reports were produced by the Center for Energy and Environment, based in Minneapolis. To link to this page, where you will be able to access the reports, in pdf format, click here.
LEGAL STRATEGIES FOR ETS INCURSIONS INTO MULTI-UNIT RESIDENCES
This article by Robert Kline of the Tobacco Control Resource Center in Boston describes the major legal theories that non-smoking residents of multiple unit residential dwellings may use to deal with incursions of secondhand smoke into their units. It suggests that use of various state regulations can be effective in protecting non-smokers from secondhand smoke incursions, or, in the alternative, that certain common law remedies may be available. To access this article, click here.
ASHRAE ADVISES DESIGN ENGINEERS ON SECONDHAND SMOKE
A new Environmental Tobacco Smoke Position Document from the American Society of Heating, Refrigerating and Air-Conditioning Engineers, issued June 30, 2005, tells design engineers how to work with local regulations and codes on secondhand smoke. ASHRAE said it believes designers "should educate their clients of the substantial limitations and available benefits of engineering controls." The document contains information on the health consequences of non-smokers' exposure to tobacco smoke indoors and how this affects the design, installation, and operation of HVAC systems. The 55,000-member organization said it realizes indoor smoking bans are the best way to minimize exposure but also recognizes "much of the population" is exposed to secondhand smoke in workplaces, homes, and public places. The document outlines four design and operation approaches: banning smoking indoors, smoking allowed only in isolated rooms, smoking allowed in separate but not isolated spaces, and mixed occupancy of smokers and non-smokers. To obtain a copy, in pdf format, go to the ASHRAE site by clicking here.
UTAH HEALTH DEPARTMENT SMOKE-FREE APARTMENT & CONDOMINIUM SITE
The Utah Health Department's Tobacco Prevention and Control Program has an excellent site devoted to smoke-free apartments and condominiums. The site includes information for landlords and tenants, as well as condominium owners who wish to adopt smoke-free policies, including the Utah Smoke-Free Apartment and Condominium Guide for Owners & Managers. It also includes the 1997 Utah law dealing with secondhand smoke in apartments and condominiums; possibly the first such law in the nation. To access the site, click here.
TACOMA-PIERCE AND KITSAP COUNTY (WA) HEALTH DEPARTMENTS' SMOKE-FREE HOUSING SITES
The Tacoma-Pierce County Health Department and the Kitsap County Health District in Washington state have sections of their web sites devoted to Providing Fresh Air Housing. The sites contain a number of very useful materials, including the following: Providing Smoke-Free Rental Units: A Guide for Building Owners and Managers; Secondhand Smoke in Apartments and Condos: A Guide for Owners and Managers; The Smoker Next Door . . . Handling Unwanted Tobacco Smoke in Apartments and Condos; Model Policy for a Smoke-Free Condo or Apartment; Frequently Asked Questions; Phone Survey of Tenants in Pierce and Kitsap Counties; and, Owners and Managers: It's Your Decision for a Fresh Air Housing Blueprint. There are also links to smoke-free apartment listings. The phone survey is an excellent 28-page report on the findings of a random sample phone survey of 1,106 tenants in Pierce and Kitsap Counties conducted in January, 2003. To access a short summary of the survey report, in pdf format, click here. To access the Tacoma-Pierce County Smoke-Free Housing Registry Site, click here. To access the Kitsap County Health District Smoke-Free Housing Site, click here.
SMOKEFREE APARTMENT HOUSE REGISTRY INCLUDES INFO ON CONDOMINIUMS
This link to the Smokefree Apartment House Registry is operated by Smokefree Air for Everyone (S.A.F.E.), a California group. The site has brief information on legal issues and model smokefree policies for condominiums that owners may wish to review. To access the site, click here.
Smoke-Free Environments Law Project
The Center for Social Gerontology
2307 Shelby Avenue
Ann Arbor, MI 48103