A 2006 court case, Poyck v. Bryant, found that secondhand smoke drifting between apartments was a breach of the implied warranty of habitability and was grounds for a constructive eviction. The judge ruled that the landlord was responsible for the acts of a third party—the smoking tenant—and that the landlord should have taken steps to eliminate the secondhand smoke problem.

Smoking damages your units and is a fire hazard. But did you know that secondhand smoke drifting between apartments is a serious health hazard that could make you vulnerable to lawsuits? More than a quarter of Portland-area renters are exposed to a neighbor's tobacco smoke on a regular basis and three-quarters of renters say they are bothered by secondhand smoke.

Non-smoking tenants can bring legal action against the landlord or the smoking tenants under several common law theories (PDF), including:

  • breach of the covenant of quiet enjoyment
  • negligence
  • nuisance
  • breach of the implied warranty of habitability
  • battery
  • intentional infliction of emotional distress
  • trespass
  • constructive eviction

Secondhand smoke can interfere with disabled tenants' ability to have equal access to and enjoyment of their housing. Depending on the case, certain tenants may be able to use the Americans with Disabilities Act (PDF) and/or the Fair Housing Act (PDF) to bring legal action against landlords for not making reasonable accommodations to protect them from secondhand smoke.

Since air-sealing and ventilation technologies do not keep out secondhand smoke, the most reasonable way to accommodate tenants is to create a no-smoking rule. The American Society of Heating, Refrigerating, and Air Conditioning Engineers (ASHRAE) position statement on secondhand smoke (PDF) says that “Currently, the only way to effectively eliminate health risk associated with indoor exposure is to ban smoking activity.”