Daily Development for Tuesday, October 2, 2007
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

LANDLORD/TENANT; RESIDENTIAL; IMPLIED WARRANTY OF HABITABILITY:  Landlord of condo unit may be liable under implied warranty for impact of second hand cigarette smoke emanating from neighboring unit owned by others and from common area controlled by others.

Poyck v. Bryant, 820 N.Y.S. 2d 774 (N.Y.S2d Misc.  2006)

Tenants leased a condominium unit in a New York multifamily building from landlord, who owned only that unit in the building.  Halfway through their second term, new occupants moved into the neighboring apartment.  The new neighbors apparently were heavy smokers, and, as alleged by tenant, both the common area hallway and the air within tenants apartment were suffused with smoke odors. 

One of the tenants was recovering from her second cancer surgery and had a tobacco allergy, and Tenants were concerned about the health impact of the second hand smoke.  Tenants complained to the building superintendent, who spoke to the neighbors, but the incessant smoke continued unabated.

Tenants wrote to Landlord outlining the problem and pointing out that Tenants had lined the door with weather stripping and a draft barrier and had installed two air filters, but that nothing seemed to work.  But despite these efforts, we can still smell the smoke . . . in our apartment.

The court noted that New York statutes precluded either Landlord or Tenant from seeking remedies against the condominium association based upon the implied warranty of habitability.  But Tenants, the court indicated, did have the right to press a claim based on the warranty against Landlord. 

Landlord responded that it was an inappropriate application of the implied warranty notion to hold him liable for actions of third parties beyond his control.  But the court responded that New York law imposes such an absolute liability on a landlord to provide a habitable premises, even when circumstances affecting habitability are beyond landlords control. 

Despite that grim pronouncement, the court went on to analyze whether Landlord ought to have done more in this case to resolve the problem.  It suggests that Landlord could have asked the condominium association to ban smoking in the hallway or elevator and to alter the ventilation so as to protect Tenants apartment from being affected by smoke in the neighboring unit.  The court suggested that the association, in response, might have treated the neighbors as a nuisance and even fined them and required a surety against future violations.

In the end, the court concluded that the question of whether secondhand smoke caused a breach of the implied warranty of habitability created a sufficient triable issue to justify denial of a motion for summary judgment. 

Comment 1:  There is no reported history to the case.  Since the only issue had to do with a few months rent, presumably the landlord saw that an appeal would be necessary to get around the smoke conscious trial judge on the case, and decided to settle or walk away.

Comment 2:  The court indicated that it could find no precedent discussing whether secondhand smoke could violate habitability.  The editor is used to determinations of habitability based upon objective factors.  The editor finds it noteworthy that, on a community standards basis, the presence of a smoke smell in an apartment, though certainly irritating, could be viewed as support a claim of that there was a significant enough breach for there to be a habitability violation.

Comment 3: Also noteworthy is the question of whether a landlord should be liable for a habitability violation based upon conditions which the landlord has no way of remedying.  The existing cases may place the burden on a landlord to bring a nuisance action against neighbors creating a nuisance.  The court here may have viewed the problem in that category.  But there is no case law of which the editor is aware holding that smoking in ones own apartment is a nuisance to ones neighbors.  The real problem here was the special sensitivity of the Tenants, especially the wife.  But why is this the neighbors problem?  For that matter, why is it Landlords problem.  People looking for smoke free apartments apparently can get help from www.smokefreeapartments.org  Not surprisingly, that site advocates the position that tenants have legal rights to secure their apartments and condo units from second hand smoke.  But I found no citations of law.  Federal housing laws may work where sensi
tivity to smoke amounts to or is caused by a disability. 

For a report of a trial court report permitting an association to prohibit smoking in condo units, see https://e2k.exchange.umkc.edu/exchweb/bin/redir.asp?URL=3D http://www.thedenverchannel.com/news/10336501/detail.html  The case number is 06CV1256, Dist. Ct. Jeff. Cty. Colo. (11/7/06).  The editor believes that many condo associations probably have this power.  But it is another matter to argue that they are compelled to use it.  The editor also has seen mention of a similar decision in Merrill v. Bosser 12 Fla. L.. Weekly Supp. 885 (County Ct. 17th Jud. Cir. 2005) (affects only Broward County).

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