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.

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:

The Live Smoke Free program in the Minneapolis/St. Paul metropolitan area
The American Lung Association in Minnesota

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.

Public and Federally Subsidized Housing

The three most common types of federally subsidized housing are Section 8-project-based, Section 8-voucher or tenant based, and publicly owned housing. In Section 8-project based housing, the federally subsidy is paid to the private owner to subsidize rents. If a tenant leaves, the subsidy stays with the property to assist a future tenant. With tenant-based Section 8, the subsidy is associated with the tenant; this program is also referred to as a housing choice voucher program. The tenant can choose from different market rate housing that has agreed to accept the voucher and that has been inspected by the local Section 8 administrator. Public housing is property that is owned by a local unit of government, such as a city or county redevelopment authority.

For more information on the different types of federally subsidized housing, the Department of Housing and Urban Development has some websites that provide overviews of each program:

Due to the contribution of federal funds that make the rents affordable, these properties are subject to additional requirements for implementing and enforcing smoke-free policies when compared with completely market rent buildings. Generally, more review is required before implementation of a policy, and additional checks are in place if violations of property leases occur. The Public Health Law Center has prepared a chart as a handy resource to compare lease requirements in subsidized housing.

Public housing authorities, also known as community development authorities or housing and redevelopment authorities, are leading the way in the adoption of smoke-free policies for multi-unit properties. Approximately 140 public housing authorities across the country have adopted some form of smoking restricted policy. The Smoke Free Environments Law Project at the Center for Social Gerontology maintains a listing of the housing authorities with policies in the section on Environmental Tobacco Smoke (ETS) and Apartments on their website.

Secondhand Smoke and Common Interest Community Properties

Common interest communities consist generally of three types of owner-occupied housing: condominiums, cooperatives and planned communities. These models differ slightly on the method of ownership, and are generally regulated by a state statute on condominiums or common interest communities. Because residents own their unit in common interest communities, implementation of smoke-free policies is more complex for existing properties with smoking owners who purchased prior to consideration of the policy.

Common interest community properties are controlled by governing documents, generally including the declaration or covenants, conditions and restrictions; the by-laws; and the rules and regulations. Smoking policies can be included in the governing documents. The decision on which governing document should be amended to include the policy will depend on many factors, including cost, desired strength of the policy and the likelihood the policy will need to be changed in the future. In situations similar to the adoption of a smoke-free policy, such as the adoption of a pet policy or changes to leasing restrictions, the majority of state courts have upheld changes to the governing documents and allowed the new provisions to be applied against all owners as long as the correct process for amending the documents was followed and as long as the changes are reasonable.

An excellent resource for information in implementing smoke-free policies in condominiums is available at the website of the Technical Assistance Legal Center at the Public Health Law and Policy Network.

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

Susan Schoenmarklin, Tobacco Control Legal Consortium, Infiltration of Secondhand Smoke into Condominiums, Apartments and Other Multi-Unit Dwellings: 2009 (2009). An overview of the legal options available to residents affected by secondhand smoke in multi-unit residences.
Warren Ortland, Public Health Law Center, A Warning Label for Your Building: Disclosing Smoking Policies for Multi-Unit Buildings (2009). A discussion of the benefits of disclosing smoking permitted or smoking restricted policies for multi-unit rental apartment buildings.
Warren Ortland, Public Health Law Center, Comparison of Smoke-Free Housing Policy Factors: Private Market Rate versus Publicly Subsidized Multi-Unit Housing (2009).

Select Research

Wilder Research for the Live Smoke-Free Program, part of the Association for Nonsmokers-Minnesota, Perceptions of Secondhand Tobacco Smoke Among Minnesota Metro Renters, August 2009 (research funded by a Tobacco-Free Communities grant from the Minnesota Department of Health, Office of Tobacco Prevention and Control).
American Lung Association of Minnesota, Smoke-Free Apartments are Good for Health, Good for Business & Good for All (2009).
Center for Energy and Environment, Secondhand Smoke in Rental Apartment Buildings.
M. J. Hewett, S. D. Sandell, J. Anderson, M. Niebuhr. Secondhand Smoke in Apartment Buildings: Renter and owner or manager perspectives, 9 Nicotine and Tobacco Research Supp. 1, S39 (Jan. 2007).