Tobacco Control Journal
OBJECTIVE --- To describe legal theories that non-smoking residents of
multiple occupancy buildings may employ when affected by environmental tobacco
smoke (ETS) from neighbouring units.
DESIGN --- Legal research was conducted in several US states. Research was
performed among statutes and regulations. State health regulations
were examined as well as common law claims of nuisance, warranties of
habitability, and the right of quiet enjoyment.
RESULTS --- Through the use of state regulations, such as a sanitary code,
several states provide general language for protecting the health of
residents in multi-unit buildings. State law also supports more traditional
claims of nuisance, warranties of habitability, and the right of quiet
The use of state regulations has the potential to provide an
effective, existing vehicle for resolution of ETS incursion problems. The
general health protection language of the regulations, in conjunction with
the latest evidence of the harmful effects of ETS, gives state agencies
authority to regulate environmental tobacco smoke incursions among
apartments in multi-unit dwellings. Where state regulations are not
available, other common law legal remedies may be available.
(Tobacco Control 2000;9:201-205)
This article examines regulatory and common law legal theories available to
address the problem of environmental tobacco smoke (ETS) incursion into the
homes of non-smoking residents of multi-unit dwellings. Non-smoking
residents may use existing state regulations, such as sanitary codes, as
a mechanism for legal action to prevent or limit incursion of ETS into
non-smokers' apartments or condominiums in multiple occupancy residential buildings. The advantage of this strategy
is that it employs an administrative system for correction of health
violations that is already in place and accepted. No legislative action is
necessary; no new legal theory need be created. It merely involves an
application of existing law and scientific knowledge to specific facts by a
Board of Health (the Board). Where the Board decision is appealed to a local
court, the court may choose to defer to the administrative body's judgment
in its area of expertise. Rather than a contentious issue of property rights
where a jury must determine the appropriate interpretation of complex
scientific evidence, the posture of the case will be an administrative law
determination by a judge regarding the authority of the Board of Health. The
burden of proof will be on the landlord to show that the Board acted
arbitrarily and capriciously, not on an individual ETS victim to prove
either the dangers of ETS or the sufficiency of exposure to implicate these
The advantage of maintaining the case in this posture is that the parties
will not be neighbour v. neighbour but instead will be the landlord v. the
Board. This eliminates the issue of the smoker's right to privacy in the
home and focuses on the landlord providing the non-smoking tenant with safe
living conditions. The landlord, as owner and economically responsible
party, is the best party to correct physical defects in the building that
allow for ETS incursion. This approach is proactive and relies on scientific
expertise of a government agency rather than a litigation model that relies
on legal expertise and a confrontation between private parties.
HEALTH EFFECTS OF ETS
Numerous health agencies and scientific studies have determined that ETS
imposes serious health risks on non-smokers. The Massachusetts
Department of Public Health determined that ETS "can cause allergies, cancer,
including lung cancer; and respiratory disease, especially in children whose
parents smoke and in people who already have lung problems. It can aggravate
heart disease and irritate the eyes, nose, throat and airways."1
ETS causes the death of an estimated 3000 non-smokers per year from lung
cancer. ETS also causes the death of approximately 50 000 people per year
due to ETS related heart disease.2 ETS has been identified as a possible
causal factor in sudden infant death syndrome (SIDS), which is the leading
cause of death in infants between 1 month and 1 year old.3
ETS also causes non-fatal but serious health risks to those exposed to it.
ETS exposure may cause immediate health consequences including alterations
in blood chemistry, effects on blood vessels and the heart muscle, and the
ability of the heart to respond to the stress of reduced oxygen delivery.2
Short term exposure to ETS increases the carbon monoxide in the blood,
reduces the ability of the heart muscle to convert oxygen into adenosine
triphosphate (ATP), and increases the likelihood of the formation of blood
Although most studies focus on the effects of ETS on individuals who live
with smokers, the qualitative nature of the studies are transferable to ETS
incursion cases because the non-smoking tenant is still exposed to the toxic
substances present in ETS. A lesser degree of exposure may exist but some
fraction of the health effects and increase in risk still remains.5
Scientists have not determined any safe threshold level of ETS. Even very
low concentrations of ETS will affect children under 2 years old and those
with respiratory handicaps such as asthma. Courts have recognized that
exposure to ETS is sufficiently harmful to give rise to a cause of
The scientific evidence gathering procedure can be relatively simple. The
Board of Health inspector or an environmental health specialist would place
an active monitor in the affected space to measure nicotine as a gas.
Assuming that the tenant is a non-smoker, a positive reading for nicotine
would provide good evidence to allow an inference that other gases and
particulate matter of ETS exist as well.
ETS INCLUSION AS A VIOLATION OF STATE HEALTH AND SAFETY CODES
Each state in the USA has some regulatory mechanism to protect the
health of its citizens living in multi-unit dwellings. The regulation
may take the form of a sanitary code, a housing code, a landlord tenant
regulation, or a municipal code. Each approach tends to set forth the
standards by which some public health body may take action in the event of a
violation, or grants rights to a resident whose health may be affected by his neighbours' actions.
These regulations usually list specific examples of code violations,
although the presence of ETS as a violation is unlikely. An important tool
for the success of this approach is the presence, at the end of this list,
of a "catch-all" clause using broad language of "other violations" as
determined by the regulatory agency.8 Regulation, case law or experience
will determine the standard to be applied by a health inspector to such
non-enumerated conditions (for example, the non-enumerated condition may
have to "endanger health and safety/well being of an occupant" to be
included as a health threat).8
The literature regarding ETS exposure must support the specific complaints by non-smoking tenants in order to meet the standards necessary under the code. A Board determination that a particular health threat exists in a particular situation would merely be applying well-accepted scientific conclusions by widely acknowledged experts using the latest scientific findings. If a violation is found, the regulatory body's procedure or duty under these circumstances may include writing a fine, ordering repairs, or reporting the infraction to some other agency. Repairs might require caulking where ETS incursions occur, installing plastic smoke blockers behind electrical outlets, and correcting problems with the ventilation systems. The landlord may also enforce lease provisions against the smoker to prevent sanitary code violations.9
The rights of the landlord are often set out under the regulatory scheme.
There are several issues a regulatory body may have to confront. How long
does the landlord have to make repairs? Is there a penalty to the landlord
for failure to repair? May the regulatory agency make a repair and charge
the landlord for the cost? Some regulations use penalties as an economic
incentive for the landlord (that is, each day the violation exists is
considered a new violation).
Most administrative regulations will provide an appeals process for the
landlord.10 The evidentiary standards and the legal standard of review
applied during the appeal process will vary by state. The appellate body may
also have a process for acceptance of general scientific data, such as ETS
research. If the internal regulatory appeal process finds against the
landlord, but the landlord still does not cooperate, the regulatory body may
need to bring the landlord to court. The court will, in most cases, defer to
the agency's expertise.
Specific states approach this problem in similar but distinct fashions. In
Massachusetts the state sanitary code specifically sets forth that the Board
inspectors are empowered to "determine if any . . .other conditions, are
conditions which may endanger or materially impair the health or safety, and
well-being of an occupant or the public."11 The drafters of the code
anticipated that non-enumerated violations would exist and be subject to
sanction.12 ETS is not specifically included, but the code states that the
listed conditions "are specifically not intended as an exhaustive
enumeration of such conditions."8 11
Connecticut's code regulating landlord-tenant relations empowers the
municipal department of health to determine whether ventilation or other
sanitary conditions pose a threat to health, and if so to order the landlord
to correct the unsanitary condition.13 In Delaware a landlord must maintain
a rental unit in such condition so that it does not endanger the health,
welfare or safety of the tenants.14 The statute permits local boards of
health to determine whether a dwelling has become unfit as a living place
and a cause of nuisance or sickness to the occupants.15 If so the local
board of health may direct the owner to "cleanse" the premises.15 Colorado's
Department of Public Health and Environment has been granted the power and
the duty "to establish and enforce standards for exposure to environmental
conditions, . . .that may be necessary for the protection of public
health.16 Furthermore, Colorado county and district health departments are
given the power and duty to "make any necessary sanitary and health
investigations and inspections . . .as to any matters affecting public
health within the jurisdiction."17 States that do not contain such general
provisions in the state statutes may leave sanitary code issues to municipal
In summary, the state sanitary code approach offers several advantages. An
existing body of law provides a framework for applying health science to a
societal problem. An administrative body (either the local board of health
or the state department of public health) will have determined the dangers
of ETS making it less likely that a lengthy and costly court battle need be
waged to "prove" well accepted science. The posture of the case will be a
local health enforcement agency seeking to uphold the health and safety
versus a landlord who, with some repairs, could resolve the problem. It thus
removes the politically contentious issue of smokers' "rights" in their
residences. Procedurally the burden will be on the landlord to show the
Board acted unreasonably, and not on the Board to justify the exact details
of ETS science. Finally, the landlord is the economically responsible party
who is most able to act to correct the ETS incursion as opposed to a more
transient smoking tenant.
OTHER LEGAL COURSES OF ACTION
There are a variety of legal courses of action that tenants and owners of
condominiums can use to try and stop a neighbour's drifting tobacco smoke from
entering their home. These legal rights require that the adversely affected
parties go to court to enforce their rights.
A private nuisance is a non-trespassory invasion of another's interest in the
private use and enjoyment of land. The invasion must be intentional and
unreasonable, and must consist of an act or the failure to act under
circumstances where there is a duty to take positive action to prevent or
abate the interference. The invasion also must cause significant harm.18
To be intentional, an invasion must be carried out by an actor who
purposefully causes the invasion, and knows, or should have known, that the
invasion is resulting from the actor's conduct.19 It need not be ill
inspired. Smoking a cigarette with knowledge that the smoke from the
cigarette is substantially certain to drift into a neighbouring dwelling is,
therefore, intentionally invading another's interest in land. An initial
complaint to the smoking neighbour should be enough to put him on notice.
The issue then becomes whether the invasion is unreasonable. To be
unreasonable, courts employ a balancing test to determine whether the
seriousness of the harm outweighs the usefulness of the actor's conduct.
Factors include: "(a) The extent of the harm involved; (b) the character of
the harm involved; (c) the social value that the law attaches to the type of
use or enjoyment invaded; (d) the suitability of the particular use or
enjoyment invaded to the character of the locality; and (e) the burden on
the person harmed of avoiding the harm."20
Cigarette smoke that drifts from one apartment to another and that causes
non-smoking apartment residents serious discomfort and impairs their health
may be an actionable nuisance. This is easy to understand if we apply the
gravity of harm versus utility of conduct test to a typical ETS situation.
First, the harm caused by the tobacco smoke drifting from one apartment or
condominium to another must be substantial and it must be significant enough
to affect an ordinary person. Watery eyes by themselves probably will not
make a case, nor will the drifting smoke from just a few cigarettes per day.
But, if the non-smokers felt sick, or they were forced out of their home on
occasion, and their house smelled, a court would be more likely to take
action. It is important to remember, however, that exposure to ETS is
dangerous to people's health, especially children's health. A court should
take this fact into consideration given the appropriate documentation.
Second, the character of the harm involved is an important prong in
determining the seriousness of drifting smoke relative to nuisance.
Secondhand tobacco smoke is poisonous, irritating and, with prolonged
exposure, can be deadly, particularly for young children or for those
suffering from respiratory ailments. Smoke in apartment buildings travels
through ventilation systems, through common areas, through windows and
through walls. The burden on a tenant suffering from ETS to avoid drifting
smoke is quite high.
The court must balance the gravity of the harm with the utility or
usefulness of the conduct of the other person.21 The social value of the
conduct, in this case smoking, is an important consideration in evaluating
utility. It is difficult to assign any particular social value to smoking
cigarettes, pipes, or cigars, aside from the simple right to use one's
property as one wishes. Nor can smoking be said to be particularly suitable
to its locality if it is interfering with the rights and health of others. A
smoker can prevent or avoid an invasion of smoke. The smoker may merely stop
or cut down on smoking, or smoke in an area where the smoke is confined or
does not bother those affected. Since the act of smoking in one's own home
possesses little social value, the argument that it is difficult to quit has
little merit in the gravity of harm versus utility of conduct equation.22
Indeed, all the smoker needs to do is smoke outside or in a room from which
air does not enter the non-smoker's apartment.
COVENANT OF QUIET ENJOYMENT
The right of quiet enjoyment addresses the tenant's right to freedom from
serious intrusions with his tenancy "such as acts or omissions that impair
the character and value of the leased premises".23 Landlords may be held
responsible for the actions of third parties beyond their control.24
Clauses in the standard lease give the landlord the right to curb the
smoking tenant's violations related to ETS incursions. The provisions relate
to "Disturbance, Illegal Use"25 and "Other Regulations".26 A landlord's
failure to enforce the provisions gives the non-smoking tenant the right to
sue the landlord for violation of the right to quiet enjoyment.27
The Massachusetts Housing Court recently found that ETS incursion from one
rental unit to another constitutes a breach of the covenant of quiet
enjoyment.28 Tenants rented a residential apartment above a restaurant and
bar. The tenants made an uncontested assertion that levels of ETS incursion
from the bar were significant. The tenants withheld rent for three months
and the landlord began eviction proceedings. The tenants asserted as a
defence that the landlord had violated their right of quiet enjoyment of the
premises. The court held for the tenants that the landlord had breached the
warranty of habitability, the statutory right of quiet enjoyment, and the
consumer protection statute. The court awarded damages and ordered
correction of the ETS incursion.29
WARRANTY OF HABITABILITY
All states have an implied warranty of habitability for rental.30 The
warranty dictates that a landlord must provide residential rental premises
fit for human occupation[---]that there are no latent or patent defects in
the facilities[---]from the inception of the rental agreement through its
The obligation of the landlord to abide by the warranty applies even when he
or she is not at fault or has had no reasonable opportunity to make repairs.
In essence, "the landlord's liability without fault is merely an economic
burden; the tenant living in an uninhabitable building suffers a loss of
shelter, a necessity."32 In effect, the landlord may be held liable even as
an innocent party; the warranty of habitability is not designed to penalise
the landlord for misbehaviour, nor is it based on notions of moral sanction
or deterrence. Likewise, when a problem exists, the landlord has an
obligation to fix it immediately and completely, to bring it into compliance
with the state sanitary code.
As discussed in the section regarding the state sanitary code, there is
sufficient scientific evidence to justify holding that ETS endangers or
materially impairs the health of the residents. Once a health inspector
makes a determination that ETS incursion has occurred the non-smoking tenant
would be able to use that as evidence of a material breach of the lease and
of the warranty of habitability. The burden would be on the landlord to
dispute the health inspector's findings.
Under a theory of warranty of habitability the court will determine whether
a material breach of the lease has occurred by applying a set of factors to
the circumstances of each case.33 The non-inclusive list of factors cited by
the court include: "(a) the seriousness of the claimed defects and their
effects on the dwelling's habitability; (b) the length of time the defects
persist; (c) whether the landlord or his agent received written or oral
notice of the defects; (d) the possibility that the residence could be made
habitable within a reasonable time; and (e) whether the defects resulted
from abnormal conduct or use by the tenant."34
Applying these factors to the typical ETS incursion problem, the more
serious the incursion the more likely the premises would not be habitable.
The defect would probably continue to exist even after notice, the landlord
should be put on notice early in the process, and repairs should be
attempted. The tenant would be a non-smoker and therefore not likely to have
contributed to the problem.
A report from a health inspector on the presence and dangers of ETS in the
dwelling would help to show the landlord violated the habitability
standards. The court, however, would perform its own factual review of the
evidence and would determine "the seriousness" of the health threat. This
might lead to a protracted evidentiary battle over ETS science. The merits
and conclusions of the science favours the non-smoking tenant, but the
lengthy process would be more likely to favour a landlord with deeper
There are several legal theories available for residents of multiple
dwelling residential buildings who are affected by ETS incursion. Each is
premised on the existence of a harm to the non-smoking resident. The health
science literature is now available to demonstrate the harm and thus support
the legal theories. The non-smoking resident must produce evidence of ETS
incursion but in some instances need not show immediate negative health impacts. The scientific literature
suggests that exposure to ETS is harmful over a long period. Courts are
beginning to recognise that ETS exposure in some circumstances may be the
basis of a cause of action. The non-smoking resident may pursue legal action
in court or request the Board of Health use its powers to protect his or her
The author would like to express his gratitude to Professor Richard Daynard,
Mark Gottlieb, Edward Sweda, Leslie Harroun, Liliana Mangiafico, and Lydia
Berez for sharing research and providing feedback as this article evolved.
The Massachusetts Tobacco Control Program provided funding for this
Correspondence to: Robert L. Kline, JD
Tobacco Control Resource Center
School of Law,
400 Huntington Avenue,
117 Cushing Hall, Boston,
MA 02115, USA
1. Massachusetts Department of Health, Public Health Fact Sheet, Second
Hand Smoke, May 1988. The Department also lists areas where smoking in
public areas is permitted and prohibited as of 1988, but does not
specifically address the issue of ETS incursion into private
2. Glantz SA, Parmley WW. Passive smoking and heart disease. Circulation
3. California Environmental Protection Agency. Health effects of exposure
to environmental tobacco smoke. Final Report. California: CEPA, 1997.
4. Stefanidis C, Vlachopoulos C, Tsiamis E, et al. Unfavorable effects of
passive smoking on aortic function Ann Intern Med 1998;128:426-34.
5. Repace JL, Lowrey AH. An enforceable indoor air quality standard for
environmental tobacco smoke in the workplace. Risk Analysis
6. Helling v. McKinney, 113 S.Ct. 2475 (1993). One court stated "the
weight of scientific authority is such that there may be significant
health consequences from involuntary exposure to tobacco smoke . . .it
is now generally accepted within the scientific community that the
direct ingestion of tobacco smoke results in adverse health effects."
7. Avery v. Powell, 695 F. Supp. 632 (D.N.H. 1988) In the case of
prisoners exposed to ETS in a residential type facility the Supreme
Court denied the government's motion to dismiss the case and remanded
the case to allow the prisoner to present evidence of the degree of
ETS exposure and the level of harm caused.
8. 105 CMR 410.750.
9. See section of this paper regarding covenant of quiet enjoyment,
10. 105 CMR 410.850-853.
11. 105 CMR 410.700. (emphasis added)
12. The Supreme Judicial Court of Massachusetts has stated that "[t]here
may be instances where conditions not covered by the Code regulations
render the apartment uninhabitable." Boston Housing Authority v.
Hemingway, 293 N.E.2d 831, 844 n.15 (Mass. 1973).
13. Conn.Gen. Stat. Section 47a-52.
14. Delaware Code Annotated Title 25, Section 5305 and Section 5303(a)(2).
15. Delaware Code Annotated Title 16, Section 305.
16. Colorado Revised Statutes, Section 25-1-107(t).
17. Colorado Revised Statutes, Section 25-1-506(1)(j).
18. Restatement (Second) of Torts.
19. Hall v. Phillips, 231 Neb. 269, 273, 436 N.W.2d 139, 143 (1989).
20. The Restatement (Second) of Torts Section 827.
21. Courts will examine "(a) the social value that the law attaches to the
primary purpose of the conduct; (b) the suitability of the conduct to
the character of the locality; and (c) the impracticability of
preventing or avoiding the invasion"
22. Moreover, smoking is no more of a fundamental right than shooting-up
or snorting heroin or cocaine. Fagen v. Axelrod, 146 Misc.2d at
297, 550 N.Y.S.2d at 559. If people do have a general "right of
privacy" to smoke the New York legislation merely requires them to
exercise it where it does not harm others. "There is no
differentiation between classes of citizens by this law. Those who
smoke have never in law been recognized as a distinct class." Fagen v.
Axelrod at 298, 559.
23. Simon v. Solomon, 385 Mass. 91, 100, 431 N.E.2d 556, 564-565 (quoting
Winchester v. O'Brien, 266 Mass. 33, 36, 164 N.E. 807 (1929). M.G.L. c
186 Sec. 14 (1992 ed.).
24. Simon v. Solomon, 385 Mass. at 103, 431 N.E.2d at 565. The court found
the landlord liable for breach of covenant of quiet enjoyment where
the flooding of the tenant's apartment with water containing sewage
was a result of other tenants using unauthorized washing machines or
introducing objects into waste stacks, despite landlord's argument
that it was unable to control other tenant's action or the source of
25. "Neither the Lessee nor his family, friends, relatives, invitees
visitors agents or servants shall make or suffer any unlawful, noisy
or otherwise offensive use of the leased premises, nor commit or
permit any nuisance thereon . . .nor create any substantial
interference with the rights, comfort, safety or enjoyment of the
Lessor or other occupants of the same or any other apartment."
Paragraph 11, Standard Form Apartment Lease, Rental Housing
Association of the Greater Boston Real Estate Board, 1996 ed. as
reprinted in "Landlord's Rights and Duties in Massachusetts", Joseph
P. DiBlasi, Sphinx Publishing, 1997.
26. "The Lessee agrees to conform to such lawful rules and regulations
which are reasonably related to the purpose and provisions of this
lease, as shall from time to time be established by the Lessor in the
future for the safety, care, cleanliness, or orderly conduct of the
leased premises and the building of which they are a part, and for the
benefit, safety, comfort, and convenience of all the occupants of said
building." Paragraph 18, Standard Form Apartment Lease, Rental Housing
Association of the Greater Boston Real Estate Board, 1996 ed. as
reprinted in "Landlord's Rights and Duties in Massachusetts", Joseph
P. DiBlasi, Sphinx Publishing, 1997.
27. Blackett v. Olanoff, 371 Mass. 714, 358 N.E.2d 817 (1977). Dworkin v.
Paley, 638 N.E.2d 636 (Ohio Ct. App. 1994).
28. 50-58 Gainsborough Street Realty Trust v. Haile, Housing Court, City
of Boston, MA No. 98-/0/2/2/7/9/, June 8, 1998.
29. Id. at 33-35.
30. "in the rental of any premises for dwelling purposes . . .there is an
implied warranty that the premises are fit for human occupation . . ."
Boston Housing Authority v. Hemingway, 293 N.E.2d 831, 843 (1973).
31. See Cruz Management Co., Inc. v. Thoma[s] 417 Mass. 782, 633 N.E.2d
390 (1994). (Management company was assessed damages for failing to
remedy violations of heat, hot water, infestation, smoke detector,
window and wiring, and fire escape State Sanitary Code violations);
Hemingway, 293 N.E.2d 831 (1973) (Court found that under a written or
oral lease there is an implied warranty of habitability based on the
State Sanitary Code and local health regulations that may not be
waived by any provision of the lease or rental agreement, where breach
of the warranty entitles the tenant to withhold rent upon proper
32. Berman & Sons, Inc. v. Jefferson, 379 Mass. 196, 200-201, 396 N.E.2d
981, 984-985 (1979). Simon v. Solomon, 385 Mass. 91, 96, 431 N.E.2d
556, 561 (1982).
33. Hemingway, 293 N.E.2d at 843.
34. Id. at 843-44.