Options for Condo Owners Suffering from Drifting Secondhand Smoke

Transcription

1 Options for Condo Owners Suffering from Drifting Secondhand Smoke June 2009 If you own a condo 1 and a neighbor s secondhand smoke is entering your unit, you may be concerned about the implications for your health. Breathing secondhand smoke can be dangerous, 2 and when it enters your home, it becomes difficult to escape. This fact sheet outlines six options for condo owners who want to avoid unwanted exposure to secondhand smoke at home. It focuses on options for those whose complex is not quite ready to restrict smoking on the property. If you are renting a condo, there are options available to your unit s owner, along with some steps you can take. If you rent an apartment, see our other fact sheets on smokefree rental housing at tobacco-control. Option #1 Work out a solution with your neighbor Before you take any other action, it is often best to try and reach an agreement with your smoking neighbor. The neighbor could agree to limit where s/he smokes, for example, or the times when s/he smokes. This type of agreement is not legally binding but may solve the problem. While you could work out an agreement informally on your own, there are mediation and dispute resolution programs that can be helpful for disputes like this. Nolo ( has free information on mediation that explains what it is and how it works (select Search Entire Site from the dropdown menu and search for the term Mediation FAQ ). We have a listing of alternative dispute resolution services categorized by county, available at Illustrations by Janet Cleland California Department of Public Health Option #2 Use the nuisance provision in the CC&Rs Nearly all CC&Rs 3 contain a provision saying that certain conditions or activities will be considered a nuisance and not permitted by the homeowners association (HOA.) Some CC&Rs nuisance provisions list specific examples, such as loud noise at certain hours or foul odors, while others merely make a general statement that any activity or thing affecting residents health or welfare will not be permitted. If secondhand smoke is drifting into your unit and your neighbor won t agree to work out an informal solution, you may ask the HOA to enforce the nuisance provision against the neighbor. You should submit your The most effective way to eliminate secondhand smoke in your condo complex is to prohibit smoking on the premises. If you d like to work with your homeowners association (HOA) to limit smoking, please see our fact sheet How to Make a Condo Complex Smokefree, available at org/tobacco-control.

2 request in writing and keep a copy for yourself. Because the drifting smoke may violate the nuisance provision of the CC&Rs, the condo board of directors ( board ) 4 has a duty to investigate the complaint and make a good faith determination of whether or not the secondhand smoke constitutes a nuisance. 5 To be deemed a nuisance, the secondhand smoke must cause an unreasonable disturbance to your use of your property. When making your request to the HOA, you must follow the procedures set out by your complex s governing documents. 6 If the board members agree with you that the drifting secondhand smoke is substantial enough to constitute a nuisance, they must take appropriate action to stop the nuisance. A simple phone call or warning letter from the board may cure the problem. It is important to note that the person making the complaint cannot dictate how to resolve the nuisance; the smoking neighbor, in conjunction with the HOA, will make that decision. The HOA doesn t have the power to order anyone to quit smoking altogether. But it might, for instance, be able to limit smoking to outdoors and away from the building or only indoors at certain times of day when the neighbors are not home; or it could require the unit be altered by sealing the air gaps or installing a HEPA filter. 7 If your neighbor ignores the board s initial warning, it may require the smoking owner to appear at a board hearing and impose a fine or suspend privileges for each nuisance violation. If the fines do not solve the problem, the HOA can seek a court order to stop the owner from creating a nuisance. 8 Option #3 Sue the HOA The HOA may not agree that the amount of secondhand smoke in your apartment violates the nuisance provision and decline to get involved, or it may make only a token effort to enforce the nuisance provision. If you believe your HOA has failed to fulfill its duty to enforce any part of the CC&Rs, including the nuisance provision, you can take the HOA to court to compel it to do so. 9 A condo owner in Massachusetts recently filed suit against her HOA after she formally requested that they act because drifting secondhand smoke was causing a hazardous condition in her unit, and the HOA did nothing to stop it. 10 The HOA asked the court to dismiss the suit, but the court refused. 11 Option #4 Sue the neighbor Filing a lawsuit should be your last resort. Lawsuits are time consuming, expensive, and contentious, and the outcome is always uncertain. 18 In addition, some CC&Rs contain an attorneys fees provision. If a homeowner sues the HOA and loses whether in superior court or small claims court this provision would allow the HOA to charge that homeowner for the costs the HOA incurred defending itself against the lawsuit. Before suing you should consult an attorney to learn whether your CC&Rs contain such a provision. If going to the board doesn t solve the problem, another option is to bring a lawsuit against the neighbor who allows the secondhand smoke to drift into your unit. (Even if the smoker is a guest or tenant, the lawsuit must be brought against the condo owner, because, in a condo, owners are responsible for ensuring that guests and tenants follow all HOA rules and restrictions.) You should only consider a lawsuit against your neighbor after you have exhausted all other options. 12 2

3 If you decide to proceed with a lawsuit against your neighbor, you might base it on one or more of the following grounds, depending on your situation: Violating the CC&Rs All owners agree to abide by the restrictions contained in the CC&Rs when they purchase a condo. In essence, because CC&Rs include a clause that owners will not create a nuisance, your lawsuit would claim the neighbor broke this contract by permitting secondhand smoke to enter your unit. 13 Nuisance Some California cities have a law expressly stating that drifting secondhand smoke constitutes a nuisance. 14 If there is no such law in your city, you must rely on state law, which does not identify secondhand smoke as a nuisance. 15 To win in court under California law, you would have to show that the secondhand smoke drifting into your apartment amounts to a substantial and unreasonable interference with the use and enjoyment of your property. 16 Other possible causes of action in a lawsuit against your neighbor include trespass, negligence, harassment, battery, or intentional infliction of emotional distress. Each of these legal claims is explained in the glossary of the publication Legal Options for Tenants Suffering from Secondhand Smoke, available at tobacco-control/products/legal-options-tenants. 17 If you decide to sue your neighbor, you ll need to decide whether to go to regular court or small claims court a decision that depends on what you want to get out of your lawsuit and whether you can hire an attorney. There are pros and cons to using each court. Small claims court In small claims court, neither side is allowed to have attorneys, so you would represent yourself, which would save you money. Although small claims court can t directly order anyone to stop smoking inside the unit, it does have an option called a conditional judgment, which allows a losing defendant to choose between paying a fine or taking an action. For example, you could ask the judge to issue an order that says the smoker either has to pay you a certain amount of money or stop smoking in the unit. If the smoker chooses to pay the money, however, small claims court is unable to prevent him or her from continuing to smoke in the unit. Small claims court does have the power to order the neighbor to reimburse you for any money you ve spent or lost due to the smoking, known as damages for instance, out-of-pocket expenses for items such as air filters or medical costs, or lost income if you missed work because the smoke made you sick. (In small claims court, the maximum amount of a claim is $7,500.) To learn more about bringing a suit in small claims court, a booklet from the California Department of Consumer Affairs is a great resource ( ca.gov/publications/small_claims), as well as the information at the California Courts website (www. courtinfo.ca.gov/selfhelp/smallclaims). Superior Court If you file your case in Superior Court, you may ask the court to issue an injunction an order to stop doing something, in this case smoking and you also can seek money damages if you wish. If you decide to go this route, you ll probably need to hire a lawyer, which can become expensive. The California Legal & Dispute Resolution Services for Tenants & Smokers Injured by Tobacco (available at www. changelabsolutions.org/tobacco-control) includes a listing of lawyer referral services in each county. 3

4 Option #5 Make a reasonable accommodation request California and federal disability laws have a process for requesting a reasonable accommodation to ensure that people with disabilities have an equal opportunity to access and enjoy their homes. 19 To qualify for protection under these laws, you must have a medical condition that meets the legal definition of a disability a mental or physical condition that limits (under California law 20 ) or substantially limits (under federal law 21 ) a major life activity such as breathing, walking, or performing manual tasks. Courts have generally recognized that individuals are disabled when they have severe asthma, allergies, chemical sensitivities, or other respiratory conditions that limit their ability to breathe. 22 Whether you are legally considered disabled will depend on the particular facts of your situation. Under federal and state disability laws, HOAs must modify their rules, practices, or services when necessary to allow a person A nonprofit organization known as a fair housing council may be able to help you make a reasonable accommodation request or may refer you to a local attorney for assistance. Our fact sheet How Disability Laws Can Help Tenants Suffering from Drifting Tobacco Smoke, available at includes a list of fair housing councils in California. with a disability equal use and enjoyment of his or her premises. 23 The HOA also must permit a disabled person to make reasonable modifications to a unit installing exhaust fans or air filters, for instance if needed to fully use and enjoy the premises. Such modifications would be at the owner s expense; the HOA is not obligated to pay for them. 24 Whether a modification to a policy or unit is reasonable depends on the specific facts of your situation. For a resident with a disability affected by secondhand smoke, a reasonable accommodation might be requesting that the HOA amend the CC&Rs or Rules 25 to declare the common areas nonsmoking or to prohibit smoking in all units. (For more on how to accomplish this, see How to Make a Condo Complex Smokefree, a fact sheet available at 4 To make a reasonable accommodation request, send a letter to the HOA explaining that you have a disability worsened by secondhand smoke and stating the specific accommodation you would like the HOA to make. You should also include a doctor s note documenting the limitations caused by your disability and a written record of when you have experienced the drifting smoke. If you are renting a condo, you may send this letter to the owner of the condo or to the HOA. If your request for a reasonable accommodation is rejected by the HOA (or by the unit s owner, if you rent), you have one year to file a complaint with the California Department of Fair Employment and Housing or the U.S. Department of Housing and Urban Development. You have two years to file a lawsuit after the accommodation request has been denied. Option #6 Work to pass a local law If you are unable to alleviate the problem using any of these options, you may want to work with your city or county to help pass a local law (also called an ordinance) banning smoking in common areas or units of multi-unit housing, including condominiums. Belmont, California, passed the first ordinance of this kind in 2007, and many other cities have since followed its example with their own smokefree housing laws. 26 A city or county also can pass an ordinance declaring that unwanted secondhand smoke will be considered a nuisance, allowing individuals to act to abate the nuisance. Several cities in California have done just that. 27 If you are interested in pursuing this option, contact us to find out who in your area is working on this issue. No matter which option you choose, it is important to consider your health. Breathing secondhand smoke that is drifting into your unit is not only annoying, it can cause serious health consequences. You can protect yourself and your family by taking action to prevent secondhand smoke from entering your home. ChangeLab Solutions formerly existed under the name Public Health Law & Policy (PHLP). Any references to PHLP in this publication should now be understood to refer to ChangeLab Solutions. ChangeLab Solutions is a nonprofit organization that provides legal information on matters relating to public health. The legal information provided in this document does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state. This material was made possible by funds received from the California Department of Public Health under contract # ChangeLab Solutions

5 1 A condominium or condo is housing that is subject to a Declaration of Covenants, Conditions, and Restrictions (CC&Rs) and managed by a homeowners association (HOA). In addition to traditional condominium complexes, the use of the word condo in this document may also include co-ops, subdivisions, common interest developments, and planned unit developments. 2 Secondhand smoke is responsible for as many as 73,000 deaths among nonsmokers each year in the United States. See US Department of Health and Human Services, Centers for Disease Control and Prevention. Fact Sheet Secondhand Smoke Available at: secondhand_smoke/secondhandsmoke.htm. Both the U.S. Surgeon General and the California Air Resources Board have concluded that there is no safe level of exposure to secondhand smoke. See US Department of Health and Human Services, Office of the Surgeon General. The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General Available at: html; see also Resolution 06-01, Cal. Air Resources Bd. (2006) at 5. Available at: Secondhand smoke contains thousands of chemicals, at least 250 of which are known to be toxic or carcinogenic, including ammonia, formaldehyde, and sulfur dioxide. See National Toxicology Program, US Department of Health & Human Services. 11th Report on Carcinogens, Substance Profiles Tobacco Related Exposures , p Available at: ntp.niehs.nih.gov/ntp/roc/eleventh/profiles/s176toba.pdf. 3 CC&Rs stands for Declaration of Covenants, Conditions, and Restrictions and describes restrictions on the use of property in the complex for example, the number or ages of people permitted to live in a unit. Because the CC&Rs are legally binding restrictions that automatically apply to the buyer, they must be disclosed at the time of sale and officially recorded, like a deed. Cal. Civ. Code 1353(a) (West 2008). 4 The board consists of homeowners in the condo complex elected by the HOA to enforce or enact regulations controlling the use of property within the complex. 5 A good faith determination usually involves the board investigating the complaint, taking into account the circumstances surrounding the complaint, and making a reasonable determination without being in collusion with any of the parties. If the HOA investigates and decides not to discipline or refuses to sue the owner of the unit the smoke is coming from, the HOA must reasonably believe its refusal to commence the action is good business judgment in the best interest of the corporation. Beehan v. Lido Isle Community Assn., 70 Cal. App. 3d 858, 865 (1977). 6 Governing Documents apply to all of the owners in the condominium complex and may include the CC&Rs, Rules, Bylaws, Condominium Plan, or Articles of Incorporation. 7 Altering the unit is the least desirable approach because, although it may help reduce some of the drifting smoke, it rarely eliminates it entirely. If the amount of secondhand smoke is substantially reduced, even if some smoke is still drifting into your unit, the board may feel that the nuisance has been abated, and the HOA may be unwilling to force the neighbor to take additional measures beyond what was already done. 8 Although the HOA has the option to go to court to enforce the nuisance provision against an owner, it is relatively unlikely that they would exercise it. This is because initiating a lawsuit is very expensive for the entire HOA, and it would only benefit those owners who are experiencing the secondhand smoke in their units. 9 Posey v. Leavitt, 229 Cal. App. 3d 1236, (4th Dist. 1991). You may also be entitled to monetary damages. Id. 10 Burrage v. Betty Gibson Associates, Inc., et al., No. SUCV E, (Suffolk, MA. 2007). 11 Memorandum and Order on the Defendant Gilchrist s and Defendants Trust s and Trustee s Motions To Dismiss, Burrage v. Betty Gibson Associates, Inc., et al., No. SUCV E (Suffolk, MA. 2008). 12 In a lawsuit regarding drifting tobacco smoke in a condo, the result is especially unpredictable because there have been very few prior cases for you to rely upon. 13 If your condo s CC&Rs expressly state that secondhand smoke drifting into another unit automatically constitutes a nuisance, then you won t have to present evidence to prove that the secondhand smoke entering your unit is substantial enough to constitute a nuisance. For information about how to change your CC&Rs to add secondhand smoke to the nuisance provision, see the TALC publication How to Make a Condo Complex Smokefree. Available at: 14 Those cities include Novato (Novato Municipal Code ), Calabasas (Calabasas Municipal Code ), Emeryville (Emeryville Municipal Code ), Dublin (Dublin Municipal Code ), Loma Linda (Loma Linda Municipal Code ) and Belmont (Belmont Municipal Code ). 15 California law more generally defines nuisance as [a]nything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of the property, so as to interfere with the comfortable enjoyment of life or property. Cal. Civ. Code A California court held that a neighbor s secondhand smoke can constitute a nuisance if it is a substantial and unreasonable invasion comparable to the reeking manure piles left unattended by a dairy (the subject of another case). Babbitt v. Superior Court, WL , at *3 (Cal. App. 4th Dist. 2004). A recent California court case determined that even outdoor secondhand smoke can constitute a nuisance. Birke v. Oakwood Worldwide, 169 Cal. App. 4th 1540 (2009). 16 This is a fairly high threshold to meet and may even require that you present evidence showing what the state of scientific research is regarding amounts of SHS that are unreasonable and/or air sample data demonstrating how much secondhand smoke is in the air in your apartment, which is not always easy to obtain. 17 While it may be helpful to know a little about the legal claims you might make, you do not need to learn the names or specific details. If you take your case to trial court, your lawyer will evaluate which claims are best suited to your situation. If you choose to bring a case in small claims court where lawyers are not allowed you will not be expected to know the legal specifics of these claims. 18 Before filing a suit, you may need to participate in a process to resolve the dispute without going to court. Cal. Civ. Code See Fair Housing Act (FHA), 42 U.S.C et seq.; California Fair Employment and Housing Act (FEHA), Cal. Gov t Code et seq. See also Unruh Civil Rights Act, Cal. Civil Code 54.1(b)(1 2). 20 Cal. Gov t Code 12926(k) U.S.C. 3602(h). 22 See County of Fresno v. Fair Employment & Hous. Comm n, 226 Cal. App. 3d 1541, 1550 (1991) ( To most people tobacco smoke is merely irritat ing, distasteful or discomforting. Someone who suffers from a respira tory disorder and whose ability to breathe is severely limited by tobac co smoke is, nevertheless, physically handicapped within the meaning of the [Fair Employment and Housing] Act. ). See also Vickers v. Veterans Admin., 549 F. Supp. 85, (W.D. Wash. 1982) where the court found the employee to be a handicapped person because the employee was unusually sensitive to tobacco smoke. Note: the legal definition of handicapped is equivalent to the legal definition of disabled. See Bragdon v. Abbot, 524 U.S. 624, 631 (1998). Holdings in employment discrimination cases may be used as guidance in housing cases. Pfaff v. U.S. Dep t of Hous. and Urban Dev., 88 F.3d 739, 745 n.1. (9th Cir. 1996). 23 California law provides residents with disabilities the same protections as federal law, though California s protections cover more people. See Fair Housing Act (42 U.S.C et seq.), Fair Employment and Housing Act (Cal. Gov t Code et seq.) and the Unruh Civil Rights Act (Cal. Civ. Code 51 et seq.) U.S.C. 3604(f)(3)(A). 25 Rules contain additional restrictions on the use of property and typically expand upon areas not fully defined in the CC&Rs for example, whether private barbecue grills are permitted on balconies or what types of vehicles may park in the parking lot. 26 Belmont Municipal Code The Center for Tobacco Policy and Organizing maintains a list of all cities with such ordinances, available at: 27 See footnote 14 for a list of those cities. 5

6 How Disability Laws Can Help Tenants Suffering from Drifting Tobacco Smoke June 2008 (revised August 2009) If you have a medical condition made worse by secondhand smoke drifting into your apartment, federal and state disability laws might help you address the problem. Depending on the nature of your disability, your landlord may be required to make changes to reduce your exposure. Disability Laws California and federal disability laws are designed to ensure that people with disabilities have an equal opportunity to access and enjoy their homes. 1 If you rent, your landlord or property manager can be required to make reasonable changes to the rules to accommodate your disability. 2 A tenant with a hearing impairment, for example, may ask to be exempted from a landlord s no-pet policy if a service dog alerts If you are not considered disabled under state or federal law, other legal remedies may apply to your situation. See our fact sheet Legal Options for Tenants Suffering from Drifting Tobacco Smoke at tobacco-control. her to sounds such as a knock at the door or a telephone ringing. 3 Or a tenant with asthma could ask her landlord to prohibit smoking in the common areas of the building, if the smoke is coming into her unit from those areas. In order to qualify for protection under these laws, your medical condition must meet the legal definition of a disability. A disability is a mental or physical condition that limits (under California law 4 ) or substantially limits (under federal law 5 ) a major life activity such as breathing, walking, or performing manual tasks. Courts have generally recognized that individuals are disabled when they Illustrations by Janet Cleland California Department of Public Health have severe asthma, allergies, chemical sensitivities, or other respiratory conditions that limit their ability to breathe. 6 Whether you are legally considered disabled will depend on the particular facts of your situation. What is a reasonable accommodation? There are several options you could request that would be considered reasonable and necessary to accommodate your respiratory condition. For example: 7 You could ask your landlord to prohibit smoking in the common areas of the building, if the smoke is coming from those areas. 8 You could ask to move to a vacant unit in the complex, away from the drifting smoke. In this situation, it is not clear how much of the moving and preparation expenses the landlord must pay; however, the law clearly contemplates that the landlord bear some costs. 9 (Your landlord would not be required to evict another tenant in order to create a vacancy. 10 ) You could ask your landlord to prohibit smoking in the apartments and balconies surrounding your unit. This might not be an immediate solution: the landlord may be required to follow a legally prescribed set of steps to change the leases and

7 make these units nonsmoking, and it could be up to a year before smoking is prohibited. For more information on adopting smokefree policies, see How Landlords Can Prohibit Smoking in Rental Housing, a fact sheet available at www. changelabsolutions.org/tobacco-control. You could ask to break your lease without incurring any financial penalties so that you can move to another apartment complex. 11 Although disability laws also can be used to request building alterations such as sealing gaps and cracks or installing fans or air purifiers, these approaches rarely solve the problem of drifting tobacco smoke. One study found that as much as 60 percent of the air in one unit can come from another unit, and that sealing leaks and openings only reduces air flow by about 3 percent. 12 Air cleaning technologies and ventilation systems also have been shown to be ineffective: according to a U.S. Surgeon General s report, filters only remove large particles, not the minute particles and toxic gases in secondhand smoke. 13 What is not a reasonable accommodation? Your request for an accommodation must directly address the problem affecting your health condition. You could not request a reduction in rent, for instance, because this does nothing to alleviate the impact of drifting secondhand smoke. 14 In addition, your accommodation request must not impose an undue burden on the landlord. 15 For a tenant who begins to have difficulty climbing stairs, requesting that an elevator be installed would likely put an undue financial burden on the landlord, and that request could be legally rejected. However, a request by that tenant to move to a vacant groundfloor unit would be considered reasonable. 16 While the law does not require a housing provider to absorb excessive costs, such as the elevator, it does envision that the landlord bear some costs. 17 Finally, it would not be a reasonable request to ask the landlord to evict the person who smokes from the building. However, you could ask the landlord to change the conditions of that person s rental agreement to prohibit smoking. 18 Renting a condo? Disability laws apply even if you are renting a condominium unit. Your landlord (the condo unit owner) is required to accommodate your disability. However, what may be considered reasonable in an apartment setting may not be the same in a condominium because of the covenants, conditions, and restrictions (CC&Rs) that regulate what condominium owners can do. For example, some of the suggested accommodation requests presented here could not be implemented solely by the owner of the condominium unit you are renting but instead may require the owner to work with the homeowners association and/ or the board of directors. What accommodation is reasonable and who should pay for the changes depend on the facts of each case. You and your housing provider should discuss your needs and how to best accommodate these. How to make the request It is your responsibility, as the person with the disability, to make the request for an accommodation to your housing provider. It is not your landlord s obligation to seek out and make these alterations. 19 Your reasonable accommodation request and all subsequent exchanges should be in writing, and you should keep copies of the letters. Although not required by law, putting your requests in writing facilitates clear communication and creates a paper trail in case the issues are not resolved and you later file a lawsuit. All letters should be sent by registered mail not only to the manager of the property but also to the property owner, property management company, and/or board of directors. Since each of these parties may ultimately be liable 2

8 in a lawsuit later, it is important that they all receive notice of the request. When making a reasonable accommodation request, you will want to send a demand letter, a doctor s note, and a record of the drifting smoke. Demand letter A demand letter to your housing provider describes your physical condition that is aggravated by exposure to secondhand smoke, identifies the source and frequency of the drifting secondhand smoke, outlines the reasonable accommodation(s) you are requesting, and summarizes the landlord s legal responsibility to accept this request. (A sample letter accompanies this fact sheet.) Nonprofit organizations in California called fair housing councils help residents with disabilities make their requests for accommodation. These services are typically provided free of charge. (A contact list of California fair housing councils accompanies this fact sheet.) Note that you do not need an attorney to prepare or submit an accommodation request. Doctor s note A doctor s note which documents both the effect the drifting smoke has on your health and the need for the particular accommodation is key to your request. Housing providers are not required to grant accommodations unless they know or should have known about the disability. In cases where the condition is not always obvious (such as asthma), the note serves as notice of the disability. Moreover, a doctor s note answers many, if not all, of the provider s legitimate medical questions in the least intrusive manner. 20 (A sample doctor s note accompanies this fact sheet.) Record of drifting smoke It is a good idea to keep a log of how the drifting secondhand smoke affects your health and the use of your home. You might list each instance when the smoke drifted into your apartment, including the time, date, and resulting health problems. You should provide the log along with your demand letter, as it may help the landlord in deciding whether to grant the request for accommodation. If the request is denied In most drifting smoke situations, because the solutions cost little or nothing, a housing provider probably cannot reject the requested accommodation on the grounds that it is an undue burden. However, if your request is rejected, you have one year to file a complaint with the California Department of Fair Employment and Housing 21 or the U.S. Department of Housing and Urban Development. 22 You have two years to file a lawsuit after the accommodation request has been denied. A fair housing council may be able to refer you to a local attorney for assistance. Conclusion Depending on your situation, disability laws may provide the most effective way for you to get relief from drifting tobacco smoke. There are many reasonable adjustments a landlord can make to accommodate your respiratory disability and reduce your exposure to secondhand smoke. By using the protections of these laws, you may be able to enjoy a smokefree environment. We extend our appreciation to Liam Garland, Litigation Director of the Housing Rights Center, for his invaluable expertise in developing this fact sheet. This material was made possible by funds received from the California Department of Public Health, under contract # ChangeLab Solutions formerly existed under the name Public Health Law & Policy (PHLP). Any references to PHLP in this publication should now be understood to refer to ChangeLab Solutions. ChangeLab Solutions is a nonprofit organization that provides legal information on matters relating to public health. The legal information provided in this document does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state. 3

9 1 See Fair Housing Act (FHA), 42 U.S.C et seq.; California Fair Employment and Housing Act (FEHA), Cal. Gov t Code et seq. The Fair Housing Act provides protections for people with disabilities who live in rental housing (public or private). 42 U.S.C. 3604(f). People with disabilities who live in federally-funded housing have further protections. See Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 701, et seq. and Title 2 of the Americans with Disabilities Act of 1990, 42 U.S.C , et seq. The California Fair Employment and Housing Act provides protections for people with disabilities living in all types of housing accommodations except in a single family home where only one room is rented. Gov t Code 12927(c)(2)(A). See also Unruh Civil Rights Act, Civil Code 54.1(b) (1 2). 2 Hubbard v. Samson Management Corp., 994 F. Supp. 187, (S.D.N.Y. 1998). 3 U.S. Dept. of Justice and U.S. Dept. of Housing and Urban Development. Joint Statement of the Department of Housing and Urban Development and the Department of Justice: Reasonable Accommodations Under The Fair Housing Act (hereinafter Joint Statement ). Available at: huddojstatement.pdf. 4 Cal. Gov t Code 12926(k) U.S.C. 3602(h). 6 See County of Fresno v. Fair Employment & Hous. Comm n, 226 Cal. App. 3d 1541, 1551 (1991) ( To most people tobacco smoke is merely irritating, distasteful or discomforting. Someone who suffers from a respiratory disorder and whose ability to breathe is severely limited by tobacco smoke is, nevertheless, physically handicapped within the meaning of the [Fair Employment and Housing] Act. ). See also Vickers v. Veterans Admin., 549 F. Supp. 85 (W.D. Wash., 1982) where the court found the employee to be a handicapped person because the employee was unusually sensitive to tobacco smoke and this limited one of his major life activities working in an environment that was not completely smokefree. Note: the legal definition of handicapped is equivalent to the legal definition of disabled. See Bragdon v. Abbot, 524 U.S. 624, 631 (1998). Holdings in employment discrimination cases may be used as guidance in housing cases. Pfaff v. U.S. Dep t of Hous. and Urban Dev., 88 F.3d 739, 745 n.1. (9th Cir. 1996). 7 These examples assume that you do not live in rental housing governed by a local rent control ordinance. A rent control ordinance might affect the ability of your landlord to implement various reasonable accommodation requests. Contact your local rent control board for specific information regarding this issue. 8 A California court determined that both the federal Fair Housing Act and FEHA do apply to common areas of residential complexes. Garza v. Raft, WL , at *3 (N.D. Cal. 1999). 9 Giebeler v. M&B Assoc., 343 F.3d 1143, 1152 (9th Cir. 2003) ( accommodations need not be free of all possible cost to the landlord ) U.S.C See Samuelson v. Mid-Atlantic Realty, 947 F. Supp. 756, 761 (D. Del. 1996) (finding waiver of a landlord s required lease termination fee a necessary reasonable accommodation under the FHA). 12 Center for Energy and Environment. Reduction of Environmental Tobacco Smoke Transfer in Minnesota Multifamily Buildings Using Air Sealing and Ventilation Treatments. (2004). Available at: org/pdf/research/summary.pdf. 13 US Department of Health and Human Services, Office of the Surgeon General. The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General. 2006, p Available at: report/chapter2.pdf. 14 That request, however, may be valid to protect your rights under other legal claims such as alleging the landlord breached the warranty of habitability. See ChangeLab Solutions fact sheet Legal Options for Tenants Suffering from Drifting Tobacco Smoke. Available at: 15 Giebeler v. M&B Assoc., supra note 9, at 1154 (an undue burden can include an excessive financial outlay or a fundamental change in operations). 16 Roseborough by Roseborough v. Cottonwood Apts., WL (N.D. Ill. 1996). 17 Giebeler v. M&B Assoc., supra note 9, at For more information on adopting smokefree polices, see ChangeLab Solutions fact sheet How Landlords Can Prohibit Smoking in Rental Housing. Available at: org/publications/landlords-prohibit-smoking. 19 For more information about making a reasonable accommodation request: See Joint Statement, supra note 3, at Once a request for accommodation is made, the housing provider can ask for verification of the disability and for further information relating to the need for the requested accommodation. This does not entitle the provider to the resident s medical records or to the precise nature (or even the name) of the disability. Id. at To file a complaint call (800) (available in both English and Spanish). For more information about the California housing complaint process, go to hcompproc.aspx. 22 To file a complaint call (800) For more information about the federal housing complaint process, go to fheo/promotingfh/atyourservice.cfm. 4

10 Sample Demand Letter [ Tenant s Name ] [ Address ] [ Phone Number ] [ Date ] An editable version of this sample demand letter (in Microsoft Word format) is available on our website at tobacco-control. Dear [ Landlord or Property Manager ]: I am writing to request that you make a reasonable accommodation for my disability. Both federal and state fair housing laws require that housing providers grant reasonable accommodation requests for tenants with disabilities. 42 U.S.C. 3604(f)(3)(b) and Cal. Gov t Code 12927(c)(1). See also Giebeler v. M&B Associates, 343 F.3d 1143, 1147, (9th Cir. 2003). I have a disability that significantly impairs my ability to breathe, and this condition is made worse by exposure to tobacco smoke. Tobacco smoke has been entering my unit and is coming from [ identify where smoke is coming from (e.g., neighboring unit) and how it is entering your unit (e.g., seems to be coming in through the heater vent ) ]. The smoke enters my apartment [ describe the frequency (e.g., every day) ]. A log is attached listing the dates of my exposure. This continuous exposure to secondhand tobacco smoke has aggravated my disability by [ describe your symptoms ]. A doctor s letter is attached, documenting my condition and symptoms. The U.S. Surgeon General has concluded that there is no safe level of exposure to secondhand smoke. See U.S. Dept. of Health and Human Services. News Release, New Surgeon General s Report Focuses on the Effects of Secondhand Smoke. June 27, Available at: In addition, the California Air Resources Board declared secondhand smoke a toxic air contaminant, which means that it may cause and/or contribute to death or serious illness. See Air Resources Board, Cal. Dept. of Environmental Protection Agency. News Release, Environmental Tobacco Smoke: A Toxic Air Contaminant. Oct. 18, Available at: California courts and the U.S. Department of Housing and Urban Development (HUD) have required that reasonable accommodations be made for persons whose disabilities are aggravated by drifting tobacco smoke. See County of Fresno v. Dept. of Fair Employment and Hous. Comm n, 226 Cal. App. 3d 1541 (employer liable for failure to accommodate two employees whose disabilities were aggravated by co-workers smoking); in re U.S. Dep t of Hous. and Urban Dev. and Park Tower Apartments, HUD Case Nos and (1998) (in response to complaint by disabled tenant with respiratory illness, landlord was required to include no-smoking term in all new tenants leases). I am requesting [ describe your accommodation request (e.g., ban smoking in the common areas, allow to move to a vacant unit away from the drifting smoke, make the surrounding units nonsmoking, release from

11 rental agreement so can move, etc.) ]. This change will eliminate my exposure to drifting tobacco smoke and alleviate the symptoms of my disability. The only reason a housing provider may reject an accommodation request is if granting the accommodation would cause an undue financial or administrative burden. See Giebeler, 343 F.3d, at However, a housing provider is required to bear some financial and/or administrative burden. See U.S. v. Cal. Mobile Home Park Mgmt. Co., 29 F.3d 1413, (9th Cir. 1994). My request to [ describe your accommodation request (e.g., move to a vacant unit away from the drifting smoke, make the surrounding units nonsmoking, release from rental agreement so can move, etc.) ] is reasonable because there will be little, if any, burden on you if you grant the accommodation. Please respond in writing to this letter by [ date ] confirming whether or not you will grant my accommodation request. I would like to resolve this issue amicably and informally, if possible. If that cannot be done, please be aware that failure to grant a reasonable accommodation can subject a housing provider to a discrimination claim in which compensatory and punitive damages are awarded, along with prevailing party s attorneys fees. 42 U.S.C. 3613(c). Thank you for your consideration and prompt attention in this matter. [ Signature ] cc: [ Property Management Firm, Homeowners Association Board, etc. ] Enclosures: Letter from Dr. [ doctor s name ] Log of exposure to drifting smoke Additional resources: How Landlords Can Prohibit Smoking in Rental Housing There Is No Constitutional Right to Smoke Secondhand Smoke: The Science (fact sheet from Americans for Nonsmokers Rights) There Is No Risk-Free Level of Exposure to Secondhand Smoke (fact sheet based on the 2006 U.S. Surgeon General s Report) factsheet7.html

12 Sample Doctor s Note (should be on doctor s stationery) [ Date ] An editable version of this sample doctor s note (in Microsoft Word format) is available on our website at tobacco-control. To Whom It May Concern: [ Patient ] has been under my care for [ describe period of time (e.g., months, years) ]. [ Patient ] has [ name of condition ] which significantly interferes with [ her/his ] ability to [ describe limitations, especially related to respiratory impairment ]. As a result [ patient ] qualifies as disabled under the federal Fair Housing Act and the California Fair Employment and Housing Act. [ Patient ] has reported to me that tobacco smoke is drifting into [ her/his ] unit from [ identify where smoke is coming from (e.g., neighboring unit) and how it is entering the unit, if known (e.g., through the heater vent ) ]. [ Patient ] says that the smoke enters [ her/his ] apartment [ describe the frequency (e.g., every day) ]. Due to [ patient ] s condition, exposure to tobacco smoke is detrimental to [ her/his ] health and increases the risk of [ patient ] suffering an adverse event, such as [ describe negative health impact ]. I urge you to grant [ patient ] s accommodation request to [ describe the accommodation request (e.g., ban smoking in the common areas, allow to move to a vacant unit away from the drifting smoke, make the surrounding units nonsmoking, release from rental agreement so can move, etc.) ]. This accommodation is necessary to ameliorate the conditions of [ patient ] s disability. Sincerely, [ Signature ] Dr. [ doctor s name ]

13 Fair Housing Councils Nonprofit organizations called fair housing councils work to eliminate housing discrimination and can help residents with disabilities make their requests for accommodation. These services are typically provided free of charge. Eden Council for Hope & Opportunities Offices in: Concord, Hayward, Livermore, Oakland, and Palo Alto (510) or (855) ASK-ECHO Fair Housing Council of Central California Office in: Fresno (888) or (559) Fair Housing Council of Orange County Office in: Santa Ana (800) 698-FAIR or (714) Fair Housing Council of Riverside County, Inc. Offices in: Corona, Moreno Valley, Norco, Palm Springs, and Riverside (800) or (951) The Fair Housing Council of San Diego Office in: San Diego (619) Fair Housing Council of the San Fernando Valley Office in: Panorama City (818) or (800) Fair Housing Foundation Offices in: Long Beach (800) or (562) Fair Housing of Marin Office in: San Rafael (415) Housing Rights Center Offices in: Los Angeles, Pasadena, and West Los Angeles and walk-in clinics throughout Los Angeles County (800) or (213) (TTY) Inland Fair Housing and Mediation Board Offices in: Barstow, El Centro, Indio, Ontario, San Bernardino, and Victorville (800) Project Sentinel Offices in: Fremont, Gilroy, Modesto, Redwood City, and Santa Clara (888) National Fair Housing Alliance Office in: Washington, D.C. (202) or (202) (TTY) Updated June 2014

14 How to Make a Condo Complex Smokefree July 2008 Although California laws protect people from secondhand smoke at work and in restaurants, shops, and other places, many residents still find themselves exposed to unwanted secondhand smoke in their homes especially if they live in multi-unit buildings. In condos, where each unit is owned separately, addressing this problem can be especially challenging. 1 This fact sheet answers common questions about how condo owners can make their entire complex, including individual units, smokefree. Why make a condo complex smokefree? In addition to the health-related harm drifting tobacco smoke can cause, 2 it can increase condo maintenance costs (for sealing and repainting walls and cabinets, replacing carpets, and cleaning the ventilation system) and decrease a unit s resale value. 3 Trying to block smoke from drifting between units by using air filters, installing an exhaust fan, or sealing crevices is usually ineffective. 4 Prohibiting smoking altogether is the only sure way to avoid unwanted exposure to this toxic substance. 5 Who can create a smokefree policy? Most people assume that when they buy a home, they will be the ones making decisions about their property. If you live in a condo, however, much of the decision-making power lies with the homeowners association (HOA). 6 The HOA, either through its elected board of directors ( the board ) or by a vote of the full membership, has the power to enforce or enact regulations controlling the use of property within the complex. Owning a unit automatically means you are a member of the HOA, and any member of the HOA can begin the process of making a complex smokefree. Many board members are unaware that condos may legally prohibit smoking in part or all of the complex, so it is often up to the HOA members to educate the board. This fact sheet can help. What areas can be designated smokefree? Smoking can be restricted on the entire property or only in certain areas. Indoor common areas: Lobbies, elevators, stairwells, laundry facilities, mailrooms, and other indoor common areas can be designated smokefree by the HOA. Smoking is already prohibited in such areas in many condo complexes, through HOA restrictions or state or local law. 7 Illustrations by Janet Cleland California Department of Public Health This fact sheet focuses on options for condo owners. If you are renting (either a condo or an apartment unit), see TALC s other fact sheets on smokefree housing available at talc@phi.org (510)

15 Outdoor common areas: Courtyards, pools, playgrounds, sandboxes, gardens, pathways, parking areas, and other common areas can also be designated smokefree. 8 In addition to protecting residents from exposure to unwanted smoke, a smokefree outdoor policy can reduce litter from cigarette butts on condo property and keep children from putting discarded butts in their mouths. Designated smoking areas in the outdoor common space are recommended so that people who smoke can do so away from shared recreational areas. Individual units: HOAs may even restrict smoking in individual units, which would prohibit all current and future owners, renters, and guests from smoking there. A smoking restriction could include the exclusiveuse common areas such as balconies and patios. How can a condo complex be made smokefree? In addition to state laws that regulate all condominiums, each complex has its own governing documents. These include the Declaration of Covenants, Conditions, and Restrictions (CC&Rs) 9 and the Rules. 10 CC&Rs describe restrictions on the use of property in the complex for example, the number or ages of people permitted to live in a unit. Because the CC&Rs are legally binding restrictions that automatically apply to the buyer, they must be disclosed at the time of sale and officially recorded, like a deed. 11 Members of the HOA must vote to approve any changes to the CC&Rs. Rules contain additional restrictions on the use of property and typically expand upon areas not fully defined in the CC&Rs for example, whether private barbecue grills are permitted on balconies or what types of vehicles may park in the parking lot. Changes to the Rules only require a vote by the board. Because Rules are easier to pass than CC&Rs, Rules may change relatively frequently. There are three ways to address smoking in a condo complex using these governing documents: 1. Have the HOA members (the condo owners) vote to amend the CC&Rs to restrict smoking in common areas and/or units. People do not have a right to smoke especially in multiunit housing, where others can be affected. See There Is No Constitutional Right to Smoke, another fact sheet from TALC available at 2. Have the HOA members vote to amend the CC&Rs nuisance provision to include drifting secondhand smoke. (A condo owner can already apply the nuisance provision to unwanted secondhand smoke, but unless the provision expressly states that secondhand smoke is a nuisance, it can be difficult to prove that the amount of drifting smoke is severe enough to be considered a violation of the nuisance provision.) 3. Have the board of the HOA adopt a new Rule restricting smoking in common areas and/or units. 2

16 Comparing Three Ways to Make a Condo Complex Smokefree Amend CC&Rs to prohibit smoking in units or common areas Amend nuisance provision of CC&Rs to state that secondhand smoke is a nuisance Adopt a Rule prohibiting smoking in units or common areas Voting Requires vote of condo owners, using formal voting procedures. Requires vote of condo owners, using formal voting procedures. Voted on only by the board, not all HOA members. Drafting The new provision should be written by a lawyer. The new provision should be written by a lawyer but isn t overly complicated. Doesn t need to be written by a lawyer. Expense Can be expensive due to lawyer fees for drafting and cost to HOA for printing and distributing ballots. Can be expensive, due to cost of printing and distributing ballots, though lawyer fees should be less than amending the CC&Rs to prohibit smoking because drafting is less complicated. Very inexpensive because it doesn t incur lawyer fees or ballot costs. Enforcement The board has a duty to enforce CC&Rs by fining, restricting the rights of, or suing the noncompliant owner. Individual owners can also enforce CC&Rs by suing the noncompliant owner (and possibly by suing the board if it failed to act to enforce the provision). The board has a duty to enforce CC&Rs by fining, restricting the rights of, or suing the noncompliant owner. Individual owners can also enforce CC&Rs by suing the noncompliant owner (and possibly by suing the board if it failed to act to enforce the provision). Only the board can enforce a Rule, usually by fining the noncompliant owner. Important considerations Requires votes from enough owners to get passed. Because the owners vote to change the CC&Rs, their participation in the decision may make them more likely to comply with the new no-smoking policy. If there is a violation, CC&Rs may be enforced in more ways than a Rule. Adding smoking to the nuisance provision would not eliminate smoking in the condo it would just allow homeowners to more easily use the nuisance provision if secondhand smoke were entering their units. This approach may be useful if a ban on smoking in units isn t feasible. Because a Rule is only voted on by the board, this approach may work best for making the common areas nonsmoking a less controversial restriction than smokefree units (although there is nothing preventing a Rule from prohibiting smoking in all parts of the complex). Adopting a smokefree Rule may work better for complexes where the board actively enforces Rules.

17 How do these three approaches differ? Amending the CC&Rs is stronger and more enforceable than adopting a new Rule, but it s also potentially more expensive and time consuming. What follows are three areas to consider when weighing the options. Voting Procedures: With any change to the CC&Rs, HOA members will have to vote using a fairly complicated balloting procedure that must be followed precisely to ensure that the vote is valid. 12 A new Rule, on the other hand, only needs to be voted on by the board rather than all of the HOA members, so it can be done relatively quickly but it can also be overturned just as quickly by the same or a subsequent board. Expense: Because the CC&Rs are a legally binding document, a new amendment should be drafted by a lawyer. This can be expensive, but it is important to ensure that the amendment is legally appropriate and enforceable. 13 (Drafting attorneys may find it helpful to review a sample at org/condos.html.) Amending the CC&Rs means the HOA must buy and print the ballots and envelopes required for the voting procedure; making a Rule change doesn t involve these costs. You also don t need to hire a lawyer to draft a new Rule, though it is encouraged. If you draft the Rule without a lawyer, make sure it clearly states what activity is prohibited, which portions of the condo complex are affected, and the penalty for failing to comply with the Rule. Enforcement: Either the board or an individual owner can act to enforce the CC&Rs, whether it s a new policy prohibiting smoking or an amendment to the nuisance clause. 14 Ordinarily, the board enforces the CC&Rs because it has a legal duty to do so, 15 either by assessing a fine or suspending the unit owner s right to use recreational facilities in the condo. If the board fails or refuses to enforce the CC&Rs, an owner may sue the owner violating the CC&R and, in some cases, sue the HOA, if it did not act to enforce the CC&R. 16 (Before bringing suit, the owner may need to first participate in a process to resolve the dispute without going to court. 17 ) When it comes to enforcing Rules, however, only the board of the HOA can take action an owner cannot sue another owner for failing to comply. 18 The board could fine the person who is not following the Rule. Even though individual condo owners cannot enforce the Rules against each other, if the board fails to enforce the Rules, owners can work to recall the board and elect new directors who will enforce them. How should I decide which approach to take? A first step could be to find out how the other condo owners in your complex feel about a no-smoking policy. You may want to distribute a survey, especially if you live in a large complex. 19 Then you can assess whether and where owners are willing to restrict smoking. If you want to restrict smoking inside units, a CC&R amendment is probably better suited than a new Rule, because there are more ways to enforce CC&Rs. Board members also may be reluctant to adopt a Rule that restricts smoking in units because they don t want to upset residents who smoke, so they may be more comfortable putting the decision in the hands of the HOA membership by calling for a vote on whether to amend the CC&Rs instead. Limiting smoking in common areas will probably be much less controversial than restricting smoking in units, so using the more informal and less costly approach of creating a new Rule might be a more appropriate route. Another factor that will help you decide between a new Rule and a CC&R change is whether the board 4