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

Smoke-Free Multi-Unit Housing:
Is it right for you?
National Multi-Unit Housing Council
Property/Risk Management Forum
Dallas, Texas October 29, 2007
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
[email protected]
410-706-1129 · 410-706-1128 (fax)
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
• It’s legal to do
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.
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
Rental Owner’s Concerns
• Return on Investment
• Avoiding Suit
• Transition to SmokeFree Policy
• Enforcement of
Smoke-Free Policy
The Marketplace is Changing
Demand Is Up
– 78 % of adults don’t 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.
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
Surveys Results
• Results on average show:
– 9 of 10 don’t 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.
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)
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 don’t take anyone’s right to smoke.
They can still smoke – outside.
• Same analysis applies to government subsidized
housing.
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.”
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
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
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.
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 offline, as well
• Former residents have to
find alternative housing
and probably won’t
return
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 don’t
have to accept the problem.
• Number one complaint from public received by
the Center.
• More knowledgeable tenants = more law suits
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.
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.
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.
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.
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.
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 nonsmoking clause in the lease, and landlord statements that
smoking would be permitted inside the unit. Court upheld
eviction finding smoke drift constituted a nuisance.
… 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.
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 allsmoking 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.
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.
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.
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.
This is not about the smoker …
IT’S ABOUT REDUCING RISK, REDUCING
COSTS, AND MAKING A HEALTHY
ENVIRONMENT.