As the public's understanding of the damaging health effects of secondhand smoke has grown, so too has concern grown regarding unwanted exposure to secondhand smoke in apartment buildings.
More and more, people are voicing concerns that the tobacco smoke produced by neighbors is seeping into their own homes, often causing annoyance, discomfort, and sometimes, illness. These concerns are best resolved amicably, through discussion and reconciliation between neighbors and building managers. However, when this is not possible, legal action may be warranted.
Such legal actions have been brought across the United States, sometimes leading to out-of-court settlements, other times to verdicts in favor of one of the parties.
The following are possible legal options available to you if you are exposed to secondhand smoke against your will:
Common Law Theories
These are ways non-smoking tenants can bring legal action against a landlord or against smoking tenants under common law. These theories include: breach of covenant of quiet enjoyment; negligence; nuisance; breach of warranty of habitability; battery; intentional infliction of emotional distress; trespass; constructive eviction.
Americans with Disabilities Act and Fair Housing Act
Non-smoking tenants who are afflicted with breathing disorders may use the Americans with Disabilities Act and/or the Fair Housing Act to bring legal action against landlords for not making reasonable accommodations to protect these tenants from secondhand smoke in common areas or in their apartments.
Here are links to three articles with more detailed information on legal options for tenants:
Legal Options for Tenants Suffering from Drifting Tobacco Smoke
Secondhand Smoke in Apartment Buildings and Condominiums
Infiltration of Secondhand Smoke into Condominiums, Apartments and Other Multi-Unit Dwellings (PDF)