Smoke-Free Multi-Unit Housing: Is it right for you?

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Smoke-Free Multi-Unit HousingIs it right for
you?

• National Multi-Unit Housing Council
• Property/Risk Management Forum
• Dallas, Texas October 29, 2007

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Presenter

• Michael F. Strande, Esq.
• Deputy Director
• Legal Resource Center for Tobacco Regulation,
  Litigation, Advocacy
• University of Maryland School of Law
• 500 W. Baltimore St.
• Baltimore, Md 21201
• mstrande_at_law.umaryland.edu
• 410-706-1129 410-706-1128 (fax)

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Why Smoke-Free Apartments?

• SHS in apts affects millions of people
• Tenants want smoke-free apartments
• Increasing numbers of complaints about secondhand
  smoke infiltration in apts
• Health risks to tenants and liabilility risks to
  landlords
• It saves money
• Its legal to do

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Why Smoke-Free Apartments?

• Smoke-free homes are the norm, not the exception.
  
• But, most apartment condo buildings are not
  smoke-free.
• A family with a smoke-free policy in their
  apartment or condo can easily have secondhand
  smoke intrusions in multi-unit dwellings.

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Why Smoke-Free Apartments?

• Secondhand smoke cannot be controlled by
  ventilation or air cleaning
• On June 30, 2005, the American Society of
  Heating, Refrigerating Air-Conditioning
  Engineers (ASHRAE) issued their latest position
  document on secondhand smoke.
• It states At present, the only means of
  effectively eliminating health risk associated
  with indoor exposure is to ban smoking activity.
  www.ashrae.org

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Rental Owners Concerns

• Return on Investment
• Avoiding Suit
• Transition to Smoke-Free Policy
• Enforcement of Smoke-Free Policy

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The Marketplace is Changing

• Demand Is Up

• 78 of adults dont smoke.
• Many willing to pay a premium for non-smoking.
• Tenants research shows no substantial variation
  in indoor smoking practices by income.
• Many smoking tenants choose to smoke outdoors
  already.

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Marketplace Surveys

• In 2006, Campbell DeLong Resources, Inc.
  conducted a tenant survey in the Oregon metro
  area.
• Healthy Androscoggin in Auburn, Maine surveyed
  850 tenants.
• Twin Cites (MN) random sample survey.
• ALA-California in 2004 surveyed 602 apartment
  residents.
• For more surveys www.tcsg.org/sfelp/public.htm

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Surveys Results

• Results on average show
• 9 of 10 dont smoke in their apt. (smokers and
  non-smokers)
• 3/4 of renters agree other things being equal,
  they would choose a rental where smoking is
  prohibited
• 1/2 would choose a non-smoking buildings even if
  other things are not equal that is, they would
  pay a little more, or perhaps be willing to trade
  out some other convenience, such as proximity to
  a desired location.
• 4 of 10 would not be comfortable renting adjacent
  to a smoking tenant.
• 1/2 said they had moved or would move because of
  secondhand smoke seepage.

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Is it Legal?

• There is no constitutional right to smoke
• All courts considering have found there is no
  fundamental right to smoke, smoking is not a
  protected liberty, and smokers are not a
  protected class of people.
• the act of smoking is entitled to only a minimal
  level of protection under the Equal Protection
  Clause. McGinnis v. Royster, 410 U.S. 263
  (1973)

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Is it Legal?

• You have a legal right to restrict smoking in all
  of your property, including units.
• Just like prohibiting pets, loud music, etc.
• Policies dont take anyones right to smoke.
  They can still smoke outside.
• Same analysis applies to government subsidized
  housing.

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HUD Legal Opinion

• HUD Legal Counsel letter of July, 2003 states
  that apartment owners are free under federal law
  to make their buildings totally smoke-free, so
  long as they grandfather current residents who
  are smokers.
• Grandfathering means for a reasonable period,
  such as until lease renewal.
• The right to smoke or not to smoke is not a
  right that is protected under the Civil Rights
  Act of 1964 because smokers are not a protected
  class under federal law.

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HUD Legal Opinion

• Similar letters have been issued from at least 4
  other HUD regional offices.
• 47 Public Housing Authorities have implemented
  smoke free policies across the country,
  including
• Santa Barbara Housing Authority, California
• Nampa Housing Authority, Idaho
• Kokomo Housing Authority, Indiana
• Bar Harbor Housing Authority, Maine
• Marysville Housing Commission, Michigan
• Helena Housing Authority, Montana
• Seattle Housing Authority, Washington

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Benefits of Going Smoke-Free

• Reduced Maintenance Costs
• Estimated 500 to 3000 extra to rehab a smoking
  apartment vs. one vacated by non-smoker.
• Remove residual smell (turn off to new renters)
• Eliminate discoloration to walls or carpets
• Repair burns to flooring

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Benefits of Going Smoke-Free

• Reduced Fire Risk
• In 2002 an estimated 926 million in damages
  occurred in apartment fires - of which cigarette
  smoking is among the leading causes.
  (Source NFPA Fire Analysis and Research Fire
  Loss in the U.S. During 2002)
• Insurers know this, and some are willing to give
  discounts to those with non-smoking policy.

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Cigarette Caused Fires

• Fire damage can cause apartment units to go
  off-line for months
• Water and smoke damage to adjoining units can
  take them off-line, as well  
• Former residents have to find alternative housing
  and probably wont return

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Benefits of Going Smoke-Free

• Reduction of Potential Liability
• Increase of Tenant Empowerment proliferation of
  information on dangers and public smoking
  restrictions have made people realize they dont
  have to accept the problem.
• Number one complaint from public received by the
  Center.
• More knowledgeable tenants more law suits

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Reduction of Potential Liability

• Tenants negatively impacted by smoke drift have
  the right to seek legal action against landlords
  who do not make adequate provisions to protect
  them from second hand smoke.

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Potential Liability for Smoke Drift

• The ADA and FHA say
• Persons cannot be discriminated against in
  workplaces, public places or in housing due to
  disability
• having severe breathing problems constitutes a
  disability (conversely, addiction to smoking is
  not)
• Therefore, these facilities are required by the
  ADA and/or FHA (and parallel state statutes) to
  provide reasonable accommodations to persons with
  severe breathing disabilities, including possibly
  making the facility totally smoke-free.

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Potential Liability for Smoke Drift

• Nuisance
• A private nuisance exists when one person
  unreasonably interferes with another person's
  interest in real property.
• Defined as any smoke, smell, noise, gas or fluid
  which materially interferes with the ordinary
  comfort of an occupant or injures his property.
• There must be a "continuousness or recurrence of
  the things or acts which constitute the nuisance.

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Potential Liability for Smoke Drift

• Nuisance
• The landlord may also be held liable, even when
  he is not creating the nuisance, if the landlord
  actively participates in the continuance or fails
  to take action to ameliorate the nuisance.
  Gorman v. Sabo, 210 Md. 155 (1956).
• Failure to fairly and consistently enforce
  nuisance provisions in current lease language,
  where awareness of the problem and authority to
  act exists, may result in adverse judgment.

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Potential Liability for Smoke Drift

• Warranty of Habitability and Right to Quiet
  Enjoyment
• Most states provide these by statute or common
  law.
• As a landlord, you have a responsibility to
  provide safe housing which is fit for occupancy.
• Should the smoke intrusion cause a tenant to lose
  use of certain rooms at certain times, the
  landlord would be in breach because the property
  is no longer fit for habitation, even where the
  landlord is not causing the problem.
• In successful cases, plaintiffs have been awarded
  significant reductions in and reimbursement of
  rent, and monetary damages for moving and
  cleaning costs and medical bills.

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Recent Smoke Drift Cases

• Poyck v Bryant, 2006 NYSlipOp 26343
• Secondhand smoke drift may form sufficient basis
  to proceed with private causes of action for
  breach of warranty of habitability against
  landlord for smoke drift from one apartment into
  another.  
• Harwood Capital Corp. V. Carey, Boston Housing
  Court, No. 05-SP00187
• Landlord ordered tenants from a one-bedroom
  rental Condominium for smoke drift, despite lack
  of a non-smoking clause in the lease, and
  landlord statements that smoking would be
  permitted inside the unit.  Court upheld eviction
  finding smoke drift constituted a nuisance.

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More Smoke Drift Cases

• Merrill v. Bosser, 12 Fla.L.Weekly Supp. 885b
• A Florida Circuit Court found excessive
  secondhand smoke drift to constitute an
  actionable trespass, nuisance, and breach of the
  covenant of quiet enjoyment.  Damages and
  remedial expenses ordered.
• Fox Point Apt. v. Kippes,No. 92-6924,(Lackamas
  County (OR) Dist. Ct. 1992)
• Tenant sued landlord, alleging breach of the
  statutory duty to keep the premises habitable and
  the covenant of peaceful enjoyment. The jury
  unanimously found a breach of habitability,
  reduced the plaintiff's rent by 50 percent and
  awarded the tenant medical costs.

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Implementation

• Survey resident to see how they feel about a
  smoking rule change.
• Make a plan
• Will you go totally smoke-free, or will certain
  wings of the building be smoke-free?
• review existing tenants' smoking status and begin
  creating smoke-free blocks of units and possibly
  all-smoking blocks of units.
• Establish clear policy
• Enforcing a policy is a lot less of a headache
  than mediating disputes between tenants without a
  policy in place.

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Implementation

• Hold a Meeting to Inform Tenants
• Amend New Leases
• Change the language of your lease to legally
  include your new smoke-free policy for apartment
  complexes or to the house rules in Public
  Housing Authority buildings.
• Reasonable Time for Current Residents
• Promote Your Status
• Begin advertising your smoke-free status to gain
  new tenants who appreciate a clean air
  environment.

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Enforcement

• Enforceable like any other lease condition,
  through normal means, including eviction.
• You must be prepared to follow through with
  consequences.
• for example, two warnings, then termination of
  the lease.

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Success Stories

• First Centrum, a major national apartment
  development management company, adopted a SF
  policy for 49 buildings in 6 states with 5,452
  units Most are affordable housing.
• Guardian Management LLC, a Portland, Ore.-based
  real estate investment and management firm has
  employed a no-smoking policy to approximately
  8,000 conventional and affordable housing units
  across the West.
• Dillon Hall in Kalamazoo, MI adopted SF policy
  for its 76 units of Section 8 housing.
• Jewish Apartments Services has over 800 SF
  units.
• Lutheran Social Services of WI UP adopted SF
  policy for parts of Cherry Creek Village
  Apartments in Marquette Most are Section 8
  units.

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This is not about the smoker

• ITS ABOUT REDUCING RISK, REDUCING COSTS, AND
  MAKING A HEALTHY ENVIRONMENT.