Smoking in an Apartment Building: What Can Be Done to Protect The Nonsmoking Neighbors? -- Technical Assistance Legal Center

Smoking in an Apartment Building:

What Can Be Done to Protect The Nonsmoking Neighbors? 1

Technical Assistance Legal Center

September 21, 1999

Residents of apartment complexes can be bothered by neighbors' smoking. For example, a neighbor's smoke may enter an apartment through open windows or the ventilation system. Unfortunately, unless the lease requires the landlord to prevent such occurrences, there is currently little relief available under California law. Landlords and local governments could act to prevent these circumstances in the future, but that is of little help to current tenants.

Although a few cases have been filed in California and in other states against landlords or other tenants because of exposure to secondhand smoke, the legal remedies are still uncertain.2 Findings made by the California Environmental Protection Agency and other agencies that link secondhand smoking to a number of illnesses, including lung cancer and heart disease, may affect a court's view of this issue.3 Because the remedies available in each case may vary, a tenant who wishes to pursue such a case should consult an attorney.
For more suggestions about non-legal ways of addressing secondhand smoke in your apartment building, please consult The Smoker Next Door...Handling Unwanted Tobacco Smoke in Apartments and Condominiums, available from the American Nonsmokers Rights Foundation. 4

Tenants Rights Against Their Landlords

Although there is no law prohibiting smoking in private residences, all California landlords owe a variety of duties to their tenants, including: (1) the implied warranty of habitability and (2) the implied covenant of quiet enjoyment.
Under the implied warranty of habitability , which is part of all California residential agreements and leases, a landlord guarantees that the premises are and will remain habitable.5 Habitability is usually determined by the landlord's compliance with certain code requirements, such as maintaining proper heating and ventilation.6 However, California courts have not held that code compliance is the exclusive determinant of whether a breach has occurred.7 Therefore, it is possible that, under certain circumstances, a court might decide that a tenant's exposure to secondhand smoke violates the warranty of habitability.

The implied covenant of quiet enjoyment protects the tenant's use and enjoyment of the premises for the purpose contemplated by the rental agreement. The landlord can violate the implied covenant of quiet enjoyment by acting or failing to act, such as failing to stop other tenants from making excessive noise. The question the courts would ask is whether the neighbors smoking substantially affects the tenants enjoyment of a material part of the premises. It is unclear how a California court would rule on this issue.

Outside of California, a few courts have allowed lawsuits to continue when a neighbor's smoking is extreme enough, or required the landlord to give the tenant a reduction in rent because of the smoke.8 However, it is unclear whether a landlord would be liable for the moving costs of a tenant who chose to break a lease due to secondhand smoke problems. Because these cases were decided by a out-of-state courts, the decisions are not binding in California and it is not clear how California courts would rule on the same facts.

Tenants Rights Against Their Neighbors

In California, a tenant currently has few if any legal rights against a neighbor for exposure to secondhand smoke.

  • There is no law prohibiting smoking in private residences, like the law prohibiting smoking in the workplace.9 Therefore, the neighbor who smokes has not broken the law by smoking in his/her residence.

  • A neighbor's smoking may not meet the legal test for a "nuisance" as interpreted by the California courts. Although California law defines a nuisance as "anything which is injurious to health, . . . or is indecent or offensive to the senses, . . . so as to interfere with the comfortable enjoyment of life or property,"10 courts also require that a plaintiff prove the behavior is both "substantial" and "unreasonable."11 Based on current California case law, a neighbor's smoking may not be seen as either substantial or unreasonable, depending on the frequency, duration and level of exposure. 12 A court may view the secondhand smoke problems as simply the tenants' failure to get along.

    However, in a Long Beach, Ca. case, a condominium owner was successful in obtaining a restraining order to prevent his neighbor from smoking in his garage, which is located underneath the plaintiff's home.13

    Rights of Disabled Tenants

    Tenants with certain physical impairments may have other legal remedies available to them to prevent drifting smoke from entering their residences. Under state and federal law, individuals with disabilities are entitled to reasonable accommodations and/or modifications of policies from their landlords to ensure equal access to and enjoyment of their housing.14

    To qualify for these protections, the tenant must meet the legal definition of "handicapped" or "disabled," meaning that their condition "limits" (under California law) or "substantially limits" (under federal law) a "major life activity." 15 For example, a person with a serious respiratory condition may be substantially limited in the major life activity of breathing. If a tenant is "handicapped" or "disabled" under the legal standard, and exposure to secondhand smoke is preventing the tenant from using and enjoying the building, the law requires a reasonable accommodation. For example, the landlord may be required to (1) prohibit smoking in common areas of the building, if that is the source of the smoke, or (2) allow the tenant to relocate to a different unit, away from drifting smoke. Alternatively, the tenant may be able to break his/her lease without penalty.

    What Can a Landlord Do to Prevent Such Problems?

    To avoid problems caused by tenants' smoking, landlords in California may:
    • implement a smoke-free policy by barring new tenants from smoking;
    • set up non-smoking wings of apartment buildings; or
    • prohibit smoking in all common areas, such as lobbies or courtyards.

    For more suggestions on how to address secondhand smoke in buildings, please consult Secondhand Smoke in Apartments and Condominiums: A Guide for Owners and Managers, available from the American Nonsmokers' Rights Foundation. 16

    What Can a Local Community Do to Prevent Such Problems?

    If individual landlords are not willing to restrict smoking in apartment buildings, a city or county may pass a local ordinance banning smoking in common areas of buildings. Local governments are free to regulate these areas because of their inherent police power to protect the health of local residents and because they are not preempted from doing so by state law.17 A city or county also can pass an ordinance declaring that landlords have the right to make areas of their buildings smoke-free.18


    If a tenant in an apartment building is bothered by neighbors' smoking, the legal remedies are uncertain. Landlords owe certain duties to tenants (implied warranty of habitability and implied covenant of quiet enjoyment). These landlord-tenant law principles may provide some relief for tenants depending on the severity and duration of the exposure to secondhand smoke. Because this is a new area of the law, it is unclear how a California court would rule. If a tenant is disabled s/he may have additional legal remedies under state and federal anti-discrimination laws.

    Alternatively, the property owner is free to prevent smoking in an apartment building. Or a local government may pass an ordinance limiting smoking in common areas or declaring that landlords have the right to make areas of the building smoke-free.

    1. This fact sheet is provided for general information only and is not offered or intended as legal advice. Readers should seek the advice of an attorney when confronted with legal issues and attorneys should perform an independent evaluation of the issues raised in these materials.

    2. A recently-passed Utah state law provides a legal remedy for secondhand smoke from a neighboring apartment in certain cases. The law explicitly states that drifting tobacco smoke may constitute a nuisance, and a tenant may bring suit to stop the nuisance and recover damages, unless the lease gives notice that smoking is allowed in other units. TALC knows of one lawsuit filed under this law to date. Utah Code Ann. 78-38-1 (1997).

    3. See Office of Envtl. Health Hazard Assessment, Cal. Envtl. Protection Agency, Health Effects of Exposure to Environmental Tobacco Smoke: Final Report (1997).

    4. This document is available at, or call 510-841-3032.

    5. S ee Cal. Civ. Code 1941 (West, WESTLAW through 1998 Legis. Sess.).

    6. See Cal. Civ. Code 1941.1 (West, WESTLAW through 1998 Legis. Sess.); Cal. Health & Safety Code 17920.3 (West, WESTLAW through 1998 Legis. Sess.).

    7 See Knight v. Hallsthammar, 29 Cal. 3d 46, 59 (1981) .

    8. See, e.g., Dworkin v. Paley, 93 Ohio App. 3d. 383 (1994); Fox Point Apt. v. Kippes, No. 92-6924 (Lackamas County, Or., Dist. Ct. 1992), in Edward L. Sweda, Jr., Summary of Legal Cases Regarding Smoking in the Workplace and Other Places (Tobacco Control Resource Center, Boston Mass.), July 1999, at 49.

    9. See Cal. Lab. Code 6404.5 (West, WESTLAW through 1998 Legis. Sess.).

    10. See Cal. Civ. Code 3479 (West, WESTLAW through 1998 Legis. Sess.).

    11. San Diego Gas & Electric Co. v. Superior Court, 13 Cal. 4th 893, 938 (1996).

    12. Examples of nuisances that courts have found to cause substantial harm are: noxious odors from a municipal sewage plant that made the plaintiffs eyes water and caused them to become nauseated; and great volumes of offensive smelling, thick, black smoke emitted from a smokestack and blown into the plaintiffs home. See Varjabedian v. City of Madera, 20 Cal. 3d 285, 294 (1977); Dauberman v. Grant, 198 Cal. 586, 589-90 (1926). A nuisance found to be unreasonable was dust created by the scratching of a neighbors chickens which blew over and upon the neighbors vines and trees. See McIntosh v. Brimmer, 68 Cal. App. 770 (1924). By contrast, the noise caused by a bouncing ball and the chatter of players from a neighbors basketball court, occurring for thirty minutes, five times a week, was found to be neither substantial nor unreasonable. See Schild v. Rubin, 232 Cal. App. 3d 755 (1991).

    13. Kelle Russell, Court Clears the Air , Long Beach Press-Telegram, Apr. 26, 1996, at B1.

    14. See Fair Housing Amendments Act of 1988, 42 U.S.C. 3601 et seq.; California Fair Employment and Housing Act, Cal. Govt. Code 12900 et seq. (West, WESTLAW through 1998 Legis. Sess.).

    15. 42 U.S.C. 3602(h); Cal Govt. Code 12926(k) (West, WESTLAW through 1998 Legis. Sess.).

    16. This document is available at, or call 510-841-3032.

    17. See Birkenfeld v. City of Berkeley, 17 Cal. 3d 129, 140 (1976); City of San Jose v. Department of Health Services, 66 Cal. App. 4th 35, 43 (1998).

    18. See, e.g., San Ramon, Cal., Municipal Code B6-73(B) (1994).

    This information was prepared by the Technical Assistance Legal Center through funds received from the Tobacco Tax Health Protection Act of 1988Proposition 99under grant #94-20982 with the California Department of Health Services.

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