Up in smoke

Smokers recently moved in next to my neighbor on another floor, and they’ve been chain smoking so much that they’re suffocating her daily. Even their common area hallway now smells like an 80s disco.

They’re both renters. Is there anything she can do, short of moving out? I checked with attorney Ryan K. Hew for some help with the situation, and he gave me a thorough rundown of some solutions.

“It was true in the past that you could really do nothing about secondhand smoke,” Hew says. “However, nowadays if you own or rent a condo or apartment you might have some options in dealing with your cigarette-loving neighbors.”

Get the Landlord to Enforce
If you know that your neighbors are renters, you might try and get ahold of their rental agreement through their landlord or simply ask the landlord about their smoking policy. Many property managers and landlords put no-smoking clauses in because it tends to make the unit harder to re-rent with the smell of smoke in the carpet and curtains.

(Note that the landlord isn't obligated to give you a copy of the lease, this is just in personal interaction to find out about their smoking policy. The only other way to find out is if you sued the landlord or renter to force it out through the discovery process—which may be extreme in some cases.)

If there is a clause, get the landlord to enforce it. Sometimes they are reluctant to tell a tenant to abide by the agreement for fear of losing them. Unfortunately, if the smoker does not agree to follow the rules, the landlord is left deciding whether or not they want to terminate the agreement or let it slide, so you may have to convince them to enforce their own agreement. It is best to let the landlord know that this is a health and quality of life issue.

Violation of Building, State and Local Codes or State Sanitary Codes
Even if there is not a no-smoking clause you can always check if your building or condominium has house or association rules. Many Hawaii high-rises have covenants (or promises) that there will be no smoking in the building and it is applicable to all residents. Everyone agrees to these rules when they move into the place.

“There are some places and factors that could lead the smoker to be in violation of State and Local Codes, as well as a State Sanitary Codes. In these cases, it is best to seek an authority to see if they apply to your situation,” Hew says.

Legal Theories
“In a situation where there is no rule against smoking by landlord-tenant agreement or among the building members, you still may have legal recourse,” Hew adds. “There are many common legal theories that apply to this situation, and for non-smokers afflicted with breathing disorders they can bring an action against the landlord for not making reasonable accommodations under the Americans with Disabilities Act and/or the Fair Housing Act.”

Some of the common law theories that a non-smoking tenant can bring as a cause of action against the landlord or smoking neighbors: They are a breach of covenant of quiet enjoyment, negligence, nuisance, breach of warranty of habitability, battery, intentional infliction of emotional distress, trespass, and constructive eviction.

Breach of covenant of quiet enjoyment is an old legal principle that gives every person the right to occupy their home (apartments and condos included) in peace and quiet. This includes the responsibility of not disturbing other people’s quiet enjoyment by the actions you take on your property. 

The smokers are affecting the sense of smell as the nonstop barking dog may affect one’s sense of hearing. In all cases, they are interfering with a person’s comfort, convenience, or health in their property.

Final Word
“Those are the basic rationales behind a couple of the legal theories,” Hew says. “However, if you are in a situation where the smoke is bothering you it is best to seek an attorney to talk to you about your specific situation. They can then assess your facts and see if there is way to help you alleviate your problem of smoking neighbors.”  
For further information:

• Hawaii Department of Health – Tobacco Prevention and Education Program: 808-586-4613
• Hawai‘i State Asthma Control program: 808-692-7472
• The Coalition for a Tobacco-Free Hawaii: 808-946-6851