MyNewPlace Blog

The contentious issue of smoking in apartments, which we've covered before, has finally made it to the DrudgeReport. This afternoon we spotted an article about a Dallas family that filed a lawsuit seeking hundreds of thousands of dollars from her former neighbor and landlord for damages incurred by smoke that had made its way into her apartment.

The plaintiff has already moved out of the townhome, filed a restraining order on the smoking neighbor and submitted a complaint under the Texas Fair Housing Act, which, if granted would extend the same protections that disabled Americans receive.

If I am interpreting this last point correctly, recognition of the plaintiff's condition could set up a precedent whereby property owners are legally required to provide housing that would respect the specified condition. In this case, wherever the plaintiffs moved, that Dallas apartment would need to be smoke-free.

Now, we can certainly sympathize with renters who want smoke free apartments. If smoking is considered a right, then the same categorization must also extend to breathing clean air However, neither of them are rights, which unfortunately puts the landlord or property manager in the same position as the parent in the front seat of a car on a long road trip with two kids in the back trying to resolve the timeless, “Mom, Matt breathed on me!" debate. Not enviable, as instead of having to pay out in ice cream cones, property owners are liable for astronomical payouts.

Richmond, CA, a city of about 100,000 people located in San Francisco's East Bay, has passed a local ordinance that will ban smoking in all apartment buildings. The new law comes on the heels of another smoking ordinance passed earlier this year that prohibits smoking in public places such as parks, parades and farmer's markets.

Richmond's new ordinance, which prohibits smoking in all multi-unit housing facilities, is one of the strictest anti-smoking laws in the nation. Only two other towns, Belmont and Calabasas, both in California, have similiar types of restrictions that extend to residences. Dublin, also located in the East Bay, passed a less restrictive ban, which requires that half the units in apartment buildings with more than 16 units must be smoke-free.

Councilman Tom Butts, seemed to acknowledge that the Richmond City Council reviewed a variety of proposal's before passing the outright ban, stating “This idea that somehow you could bifurcate buildings and make portions of it smoking, portions of it nonsmoking, it just doesn't work." Indeed, we have heard how smoke travels between rental units through the smallest of channels, such as electrical sockets.

We have reported on local and state government's efforts to pass laws that protect renters from secondhand smoke in apartments for the past year or so. We have seen lawsuits, restraining orders, redundant state legislation, outright bans and owners devising policies suit their renters.

We tend to think that apartment owners should have the right to make the rules for their apartments, since they will act in a way that will please the largest amount of their tenants. If a tenant does not like a certain policy, then they can choose to move into a different apartment. If the owner enacts sweeping changes, such as a smoking ban, then a tenant should have an opportunity to break their lease without penalty.

What do you think? Does the government have a responsibility to ensure that it's citizens are not exposed to dangerous elements in their apartments? Should an apartment owner be forced to enact certain policies? Apartments must remove asbestos, but you can't exactly buy a pack of asbestos at the store.

Have you witnessed disputes amongs renters over secondhand smoke? Have you lived or worked in an apartment complex that adopted smoking policies?

It seems like every few months we come across a story about the controversy that surrounds a person's right to smoke in their apartment versus the rights of other residents to have a smoke free apartment.

Certainly an apartment owner has the right to ban smoking in their building and many are choosing to do so in order to command higher rents. The question is whether a local city government should impose restrictions on multifamily properties.

(photo courtesy of Mia Mabanta)

Over the past year we have seen some smaller California towns prohibit smoking in multifamily properties; Belmont banned all smoking from all multifamily properties, Dublin courts granted a restraining order to one couple to keep a smoking neighbor away and Oxnard required that senior public housing be made smoke-free.

Now, apartments in Tacoma, Washington may soon face similar restrictions. A study by the Human Rights and Human Services Department was presented to the city council's Neighborhoods and Housing Committee last month, which highlighted the fact that secondhand smoke is the third-leading preventable cause of death in the U.S.

Although the officials made no specific recommendations and council members took no actions, the report seems to have focused on multifamily apartments as a target area; prohibiting smoking in apartments would be one of the most effective ways to curb exposure to secondhand smoke.

The report laid out different options for the city, from an outright ban of smoking in all multifamily properties to keeping a percentage of units in each building smoke free. The report acknowledged that the most difficult part of any ban would be enforcement, and offered incentive programs to landlords who would take on the responsibility of enacting and enforcing any legal actions.

About a year ago, we wrote about how many apartment owners were opting to keep their apartments smoke free. Have property managers or renters witnessed that trend continue?

Serendipitous legal circumstances may have contributed to the establishment of a new legal precedent in one northern California town located east of the San Francisco Bay; citizens of Dublin, CA may now be eligible to file temporary restraining orders to escape secondhand smoke.

(photo courtesy of Mia Mabanta)

From an article in the Contra Costa Times, we learned that an Alameda County Court judge granted a temporary restraining order to a couple who complained that their downstairs neighbor had violated a town nuisance ordinance by smoking near their residence. Read the rest of this entry »

Smoking in rental apartments is a controversial topic. On one hand, it seems reasonable that one should be free to do all legal activities within their own home, rented or not. On the other hand, when does this right to privacy infringe upon the rights of others?

The State of California may soon be intervening on the side of non-smokers.

Senate Bill 1598, authored by Senator Alex Padilla (D-San Fernando Valley) and passed by the Senate Judiciary Committee on April 29^th, would provide legal protection for apartment owners who want to ban smoking in their apartment complexes.

The bill does not seek an outright ban on smoking in apartments, an action that some anti-smoking groups have pushed for, who claim that the bill does not change the status quo. This middle of the road approach protects private apartment owners who want to ban smoking in their apartments from lawsuits.

Apartment owners, however, already implicitly have the right to enact regulations and prohibitions in their apartment buildings, including any those pertaining to smoking. So, what does the bill actually accomplish?

All court cases that we have seen have involved non-smokers filing suit to force apartment owners to take action to prevent second hand smoke under the Fair Housing Act, or suits between neighbors not apartment owners facing legal recourse on the grounds of rights to privacy or a ‘right to smoke.'

Many apartment owners have already ‘cleared the air;' by prohibiting smoking in their apartment buildings, they can command higher rents as well as slow depreciation and mitigate the risk of fires.

The law may have the effect of creating publicity about the benefits that apartment owners may reap by going smoke free; smokers that rent apartments in buildings that change policies will face the decision of whether to move out or to take it outside.

Be on the lookout for tips in our apartment guide on the topic of settling disputes between apartment neighbors.

Have renters had problems with a neighbor who smokes? Would you pay more to live in a non-smoking apartment building?

Should MyNewPlace add a Smoke Free search filter?

The town of Oxnard, California has voted to prohibit smoking in senior public housing complexes in the downtown area. The measure passed unanimously at a city council meeting on March 25^th. Oxnard's new legislation makes it the third town in California to restrict smoking in multifamily apartment rentals.

Calabasas and Belmont had both previously passed local ordinances in response to a growing numbers of complaints from renters who were affected by secondhand smoke.

These towns have taken bold stands on the issue of smoking in apartments. As we related in an earlier post on smoke free apartments, the issue can be quite contentious. Local ordinances generally draw the ire of civil liberty groups over the protection of an individual's right to privacy.

The matter has been quite difficult to resolve in the multifamily industry; unless the apartment is delegated by its owners as smoke free, the issue often is left to be hashed out between neighbors.

At least in once instance, a neighborly dispute about smoking has led to a negligence lawsuit. Galila Huff, of New York City was sued for endangering the health of her neighbors and their 4 year old son.

The lawsuit was settled out of court after Aerus, a manufacturer of home cleaning products, offered to install air filters and purifiers in both apartments.

If not for the intervention of the company, however, it is difficult to predict how this matter would have played out in court. How can a balance be struck between the right to privacy, especially in one's home and his or her effect on their community?

Is this issue best left to be settled amongst neighbors or should local municipalities start getting involved?

When renting an apartment, one usually feels as though they are free to do as they wish, as long as it is within the bounds of reason, legality and the terms of their rental agreement. Whether renting an apartment or owning a house, everyone wants to feel like the king or queen of their respective castles. Smoking, however, is a contentious subject; should one be allowed to smoke in his or her own apartment?

According to a recent article in Units Magazine, apartment owners are favoring a more restrictive policy when it comes to smoking and are seeing happier tenants and a higher demand for their smoke-free apartments as a result. A survey done by the Portland-Vancouver Metro Area Smokefree Housing Project found that 75% of renters prefer smoke-free apartment buildings and half would pay more for smoke-free communities.

Not only do non-smokers wish to live in a smoke-free environment, even those who do smoke recognize the dangers and the undesirable side effects of smoking in their apartments. The survey also found that only 11% of smokers actually smoke inside their own apartments; many cite preserving their loved ones' health and keeping their apartments clean as primary reasons. Property managers and apartment owners are now citing their smoke-free policies to potential renters as a selling point. Their apartments are cleaner, healthier and do not depreciate as quickly, and they mitigate the risk of the devastating effects of fires.

The issue has even attracted the attention of local city councils. When local governments get involved, however, staunch opposition typically emerges. Smokers do not necessarily have a problem with apartment owners prohibiting smoking, but when a local ordinance is passed, a tenant's right to privacy is commonly perceived as being infringed upon.

What do renters think? Should MyNewPlace add smoke-free as a search filter option? Do problems often erupt between non-smoking and smoking neighbors?

Send us your feedback or tell us your stories about dealing with this controversial issue.