Housing

Overview

Recent regulation of secondhand smoke has focused primarily on reducing or eliminating exposure in places of employment or in public places. This effort has proved successful in significantly reducing the incidence of smoking-related health conditions. Since people spend more time in their homes than in any other location, policies aimed at controlling exposure to tobacco smoke in private multi-unit residences can significantly contribute to the improvement of residents’ health.

Initial efforts at assessing and controlling exposure to secondhand smoke in private residences have focused on multi-unit rental apartment buildings. Problems with secondhand smoke exposure in common interest communities – condominiums, cooperatives and planned communities – have not received as much attention as rental buildings. Because of the different legal arrangements involved in a landlord and tenant transaction compared with an owner-occupant, the approaches to solutions, legal options, and legislative policy choices differ between the two situations.

A significant subset of multi-unit residences within the rental category is housing that is subsidized by the federal government or owned by state or local public entities. Receipt of public funds subjects this category of housing to additional regulations, so a separate section is included under rental apartments for issues and resources related to subsidized or public housing.

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For Other Related Topics:

Below, please find more information on Housing relating to:

  • Market for Smoke-Free Housing
  • Secondhand Smoke and Multi-Unit Rental Apartments
  • Common Legal Issue or Strategies
  • Select Legislation
  • Key Resources
  • Select Research
  • Key Links

Market for Smoke-Free Housing

A significant majority of residents in both rental buildings and in condominiums have stated their preference for smoke-free properties. Resident surveys conducted across the country have documented their adverse response to exposure and willingness to give up other amenities across all income levels. Here are a few representative surveys:

Secondhand Smoke and Multi-Unit Rental Apartments

Policy Approaches

The approaches to eliminating secondhand smoke in multi-unit rental apartments range from voluntary measures adopted by apartment building owners, to governmental incentives, to ordinances and statutes at the state and local level regulating smoke-free policies, or other exposure deterrents.

Voluntary / Grassroots Efforts

Across the country, local public health agencies and non-profit organizations have established smoke-free housing programs to encourage rental property owners to adopt some form of smoke-free or smoking-restricted policies for their buildings. This approach involves meeting with individual landlords, or with landlord associations, tenant organizations or associations representing property owners. Here are a few organizations active in this effort:

These programs can assist with all phases of smoke-free policy implementation, from surveying residents and giving presentations to property managers to providing signage to help with enforcement of the policy once adopted.

Governmental Incentives

This policy approach covers government programs that financially motivate property owners to adopt smoke-free policies or that impose requirements that may encourage owners to adopt smoke-free policies in units.

Low Income Housing Tax Credit

  • The Low Income Housing Tax Credit program provides federal tax credits to states and local government units to stimulate the development of affordable housing. Local governments can develop criteria for the type of housing they want in their communities. Three states, California, Maine, and New Hampshire, and two cities, Minneapolis and St. Paul, have included the adoption of smoke-free policies for proposed building projects as a criterion that is considered in the awarding of tax credits. Developers do not have to include a smoke-free policy in their development, but their chances in the competitive process are improved if they do. An excellent resource on the low income housing tax credit program is on the website of the Department of Housing and Urban Development.

Disclosure

  • The City of Oakland, California and the State of Oregon have passed laws that require the owners of rental apartment buildings to disclose the smoking policies for the buildings, whether the policy is smoking permitted, smoking restricted or smoke-free. The laws do not mandate that units be smoke-free; the laws just require notification to prospective tenants of the smoking policies and location of smoking and non-smoking units. The Oakland ordinance also requires that sellers of condominiums disclose the smoking policy for the unit and for the complex.

Common Legal Issue or Strategies

For renters and for common interest community owners bothered by exposure to secondhand smoke, several legal strategies are available that may help alleviate the problem.

Common Law Claims

Several common law causes of action are available that could potentially provide some relief from exposure to secondhand smoke.

Nuisance – A private nuisance is defined as “a condition that interferes with a person’s enjoyment of property, but does not involve a trespass.” Tenants or owner-occupants bothered by secondhand smoke intrusion have had some success claiming that secondhand smoke coming into their unit is a nuisance, but the results have not been consistent. While some courts have held that substantial amounts of smoke transferring between units is a nuisance, others have determined that the smoke intrusion is like an odor intrusion and is a condition of living in a community environment that residents have to put up with.

Warranty of Habitability – The warranty of habitability is “a warranty from the landlord to the tenant that the leased property is fit to live in and will remain so during the term of the lease.” This claim has occasionally been used to alleviate the intrusion of secondhand smoke, primarily in rental property. It is frequently used in conjunction with the covenant of quiet enjoyment and/or nuisance with some success.

Select Legislation

Federal Policies and Laws

No federal statute or regulation mandates that multi-unit residences permit smoking or that the residences must be smoke-free. Several recent policy announcements from the federal government have indicated that smoke-free policies are to be promoted, however. In June of 2009, the U.S. Department of Health and Human Services issued “The Surgeon General’s Call to Action To Promote Healthy Homes,” which prominently referenced secondhand smoke as a determinant of indoor air quality. On the same day, the Department of Housing and Urban Development issued a document entitled “Leading Our Nation to Healthier Homes: The Healthy Homes Strategic Plan,” which also featured a discussion of smoke-free housing as a critical public health need.

In July of 2009, HUD’s Office of Public and Indian Housing and the Office of Healthy Homes and Lead Hazard Control, issued a notice “strongly encouraging” all public housing authorities to adopt smoke-free policies. The notice (PIH-2009-21) clearly states the health risks, fire danger, and maintenance issues posed by continuing to allow smoking in public housing buildings.

Federal statutes that might be used to aid tenants bothered by secondhand smoke are the disability statutes: the Americans with Disabilities Act, the Federal Rehabilitation Act, and the Federal Fair Housing Act. If a resident has a health condition that could be considered a disability, and this condition is exacerbated by exposure to secondhand smoke, then the resident may be able to request a “reasonable accommodation” to reduce or eliminate exposure to secondhand smoke. Some conditions that may qualify are asthma, chronic obstructive pulmonary disorder, multiple chemical sensitivity disorder, environmental illness and other respiratory or heart conditions. Whether a condition is considered a disability and the possible accommodations for that disability are decided on a case-by-case basis.

State Law

Laws at the state level that directly affect exposure to secondhand smoke in private multi-unit residences are very limited.

Utah has a statute that specifically defines the intrusion of secondhand smoke into a multi-unit residence, either an apartment or a condominium, as a private nuisance if it occurs with a specific frequency. With this statute, establishing a nuisance exists is easier for tenants experiencing secondhand smoke intrusion. Utah also has permissive language in its condominium statute stating that prohibiting smoking is an example of a rule or regulation change that can be implemented in condominiums.

Oregon recently enacted legislation that requires landlords to disclose the smoking policy for the apartment building and the location of smoking permitted units. While this law does not require that any units be smoke-free, it does serve to alert prospective tenants that they may be exposed to secondhand smoke in smoking permitted buildings.

City / County Ordinances

Across the country, few states, counties or cities have opted to regulate smoking in individual private multi-unit residences. California is leading the way in this effort; several cities in the state have adopted ordinances that require all or a portion of multi-unit rental properties be designated as smoke-free. The American Lung Association of California’s Center for Tobacco Policy has prepared a matrix comparing provisions in various California ordinances.

Key Resources

Select Research

Key Links

Featured Publications

  Regulating Smoking in Multi-Unit Housing - Tips & Tools (2013)

This updated guide provides basic guidelines to communities about policies that address secondhand smoke infiltration in multi-unit housing

  Subsidized Housing and Smoke-free Policies: Overview of Subsidized Housing (2013)

This fact sheet provides a basic overview of two types of federally subsidized multi-unit housing and the government’s approach to smoke-free subsidized housing policies.

  Thirdhand Smoke: A Select Bibliography of Recent Studies (2013)

Bibliography containing select listing of latest research studies and literature on thirdhand smoke, including brief descriptors and links, where available.

  Disclosure of Smoking Policies in Multi-Unit Housing (2013)

Fact sheet that explains the concept of a smoking policy disclosure ordinance or statute, and reviews benefits and concerns that authorities might want to keep in mind when considering such measures.

  No-Smoking Policies in Condos: Working with Community Associations & Common Interest Communities

Date: 
Wed, 02/29/2012
Time: 
12:00PM

This webinar covers:

  Promoting Smoke-Free Policies for Public Housing

Date: 
Mon, 01/28/2013
Time: 
11:30AM

Supporting smoke-free policies for multi-unit public housing is a critical way to reduce health disparities among some of our most vulnerable citizens.  This webinar provided information on the public housing market and acquainted attendees with the terminology that is common in the affordable housing sector.  The presenters discussed recommendations on how to work with public housing authorities and also reviewed legal topics that should be considered when discussing smoke-free policies with public housing authorities. 

 Presenters:

  Palliative Care versus Harmful Exposure: Secondhand Medical Marijuana Smoke in Multi-Unit Housing

Date: 
Tue, 04/02/2013
Time: 
12:00PM

The number of states that have adopted statutes permitting the use of medical marijuana under certain circumstances continues to grow. Accompanying this growth is an increase in questions about how these laws affect smoke-free policies for multi-unit residential properties. This webinar reviewed the interplay between medical marijuana laws and policies addressing secondhand smoke. The discussion covered both private, market-rate properties and federally subsidized public housing and Section 8 properties.

  Overview of U.S. Smoke-free Foster Care Regulations (2013)

Table summarizing state smoke-free foster care regulations in effect as of December 2012, with hyperlinks.

  Addressing Health Disparities: Smoke-Free Policies for Public Housing

Date: 
Tue, 07/03/2012
Time: 
12:00PM

The adoption of smoke-free policies for multi-unit residential properties has been increasing exponentially over the last several years.  The Department of Housing and Urban Development (HUD) is a strong supporter of these policies because eliminating smoking in individual units protects residents by improving the indoor air quality and lowering the risk of fire.  From this webinar, attendees will learn about the legal considerations involved when adopting and implementing smoke-free policies for subsidized housing.   A representative from HUD’s Office of Healthy Homes and Lead Hazard reviews recent HUD announcements and initiatives regarding smoke-free policies and the Director of Operations and Property Management from the Boston Housing Authority discusses that authority’s decision to implement smoke-free policies.

  Tobacco Behind Bars: Policy Options for the Adult Correctional Population - A Policy Options Brief (2012)

Examination of the current state of tobacco control policies in local and state prisons and jails in the U.S., the health care cost of tobacco use among the correctional population, regulatory challenges with correctional tobacco-and smoke-free policies, and policy options and opportunities. 

  Tobacco and Juvenile Offenders: Breaking the Cycle - A Policy Options Brief (2012)

Examination of the current state of tobacco control policies in juvenile residential correctional facilities and detention centers, the prevalence of tobacco use among juvenile offenders, challenges with tobacco cessation services in the juvenile justice system, and policy options and opportunities.

  Tobacco in Adult Correctional Facilities: A Policy Overview (2012)

Overview of problems of tobacco use in U.S. adult correctional facilities, cost impact of tobacco use by the correctional population, challenges and obstacles faced by facilities in implementing tobacco-free policies, and guidelines for developing effective tobacco policies in U.S. correctional facilities.

  Tobacco in Juvenile Facilities: A Policy Overview (2012)

Overview of tobacco use among youth in the juvenile justice system, the types of tobacco cessation programs available in juvenile facilities and the challenges that exist in providing these programs, and possible approaches to reducing tobacco use by high-risk youth.

  First Steps Towards Making Affordable Housing Smoke-free (2012)

Answers to common questions the public health community and others may have about smoke-free housing policies in low-income or subsidized multi-unit housing, including suggestions on how to find affordable housing providers and educate them about smoke-free policies.

  Creating Smoke-free Affordable Housing - Tips and Tools (2012)

Basic information for communities to consider when implementing affordable housing policies, including policy benefits, types of affordable housing, challenges, examples of affordable housing policies, and resources.

  Comparison of Smoke-free Housing Policy Factors - Chart (2010)

A comparison of smoke-free housing policy factors, with an examination of private market rate versus publicly subsidized multi-unit housing.

  Smoke-free Common Interest Communities: Legal Fact Sheet (2010)
This fact sheet addresses some of the legal-related questions that may arise when homeowners’ associations consider adopting smoking restricted or smoke-free policies.
  Smoke-free Common Interest Communities: Results of a Survey of Minnesota Property Managers (2010)
Results of a survey of 17 property managers of owner-occupied common interest communities (condos, townhomes, and other owner-occupied attached housing) in Minnesota.
  There is No Constitutional Right to Smoke: 2008
A revised and updated version of our 2005 publication explaining why smoking is not a constitutionally protected right.

Samantha K. Graff (2008)

  Legal Options for Condominium Owners Exposed to Secondhand Smoke
An overview of the problems of secondhand smoke seepage in condominiums and the legal and policy remedies available to condominium owners.

Susan Schoenmarklin (2006)