Q&A: Dealing with Second-hand Smoke

Q The tenant below me smokes nonstop. Her windows are always fully open and the smoke travels directly into my apartment above. My apartment smells like an ashtray and of course leaves us vulnerable to second-hand smoke. Even with our windows closed and air-conditioning running, the problem is persistent. Do I have any legal recourse?

—Smoked Out in Chicago

A “Although the Clean Air Act and other state and federal statutes prohibit smoking in public places, we are just moving into an era of imposing regulations on private property as well,” according to Jordan I. Shifrin, a founding principal of the Buffalo Grove-based law firm of Kovitz Shifrin Nesbit and a practicing attorney since 1977. “Your home state may be considering such legislation, but the bigger question is, whether an association has either the express or implied authority to restrict an owner's use and enjoyment of their home, if it disturbs another.

“Many covenants have a provision restricting nuisances, etc., but in my opinion any regulation would have to be specific. In my opinion, it is within the inherent authority of an association board of directors to adopt rules and regulations governing the smoking with the building as a health and safety issue.

“The rules could include ventilation requirements if an owner does, or an outright prohibition. However, it may raise the question of whether such regulation must be prospective in nature. I would say an existing owner would have to be grandfathered.

“The property could include in all communications and signage that it is a "smoke free" environment.

“A board would need to be aware of the fact that it is going to be a controversial subject and the board should conduct one or two public meetings, before it makes a final decision, but with proper notice and consideration of all owners rights, in my opinion it can be done.”

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3 Comments

  • Andrea Walsh, CMCA, AMS on Wednesday, January 12, 2011 2:41 PM
    I believe a bigger issue is hiding under this "smoke-screen". Government officials are now attempting to set rules on what you cannot do INSIDE your own home. Non-smokers should also be paying attention to this, as it can escalate to rules changing pet-friendly condos into a no-pet zone.
  • Smoke migration reveals the reality that odorless air contaminants, as well as smelly ones like smoke, can drift through the building. Routes of air movement likwise increase fire spread hazard (heaven forbid a fire would occur). Smoke odor is a problem of itself, and a symptom of other potential hazards. Smoke containment is possible and has been carefully researched by Center for Energy and Environment in Mpls, MN. MNCEE.org > Research > Environmental Tobacco Smoke. It may be less costly to correct the problem than sue. Add to smoke odor migration control: better control of comfort, reduced air leakage and utility bills, reduced fire spread hazard, and simply making the building perform as you expect it can.
  • What steps can we take to stop an owner from smoking with oxygen in her unit? There are 48 total units here and we are all concerned. afraid of being blown away!