You could pursue some or all of the five possible strategies described below. (Note that this information is specific to apartment tenants living in California. If you live in a condominium or a single-family home and are affected by drifting secondhand smoke, please see separate questions regarding these situations.)
- Create a voluntary agreement with your smoking neighbor to limit where he or she smokes;
- Encourage your landlord to adopt a smokefree policy;
- Ask for a “reasonable accommodation” from your landlord if you are disabled and your health condition is worsened by exposure to secondhand smoke;
- File a lawsuit against the landlord and/or your smoking neighbor based on legal grounds such as nuisance, trespass, breach of warranty of habitability, and/or breach of covenant of quiet enjoyment; and/or
- Urge your local elected officials to adopt a law to restrict smoking in multi-unit housing.
1. VOLUNTARY AGREEMENT
One option is for you to try and reach a voluntary agreement with your smoking neighbor. The neighbor could, for example, agree to limit where he smokes or the times when he smokes. Such an agreement is not legally binding. Americans for Nonsmokers' Rights (ANR) has a publication called "The Smoker Next Door: Handling Unwanted Tobacco Smoke in Apartments and Condominiums," which is especially useful for pursuing a voluntary agreement.
Although you and your neighbor may be able to work out an agreement on your own, there are mediation and dispute resolution programs that can assist people with disputes like this.
2. SMOKEFREE POLICY
Your landlord has the legal ability to prohibit smoking in indoor and outdoor common areas of the apartment complex, as well as to restrict smoking in individual units. For details on how a landlord could adopt such a policy, and for links to smokefree provisions a landlord could add to a lease, see our publication, “How Landlords Can Prohibit Smoking in Rental Housing.”
For landlords concerned about whether implementing such a policy is legal, our memo entitled "There Is No Constitutional Right to Smoke" provides a helpful explanation.
Several other organizations have information on their websites about addressing drifting smoke in multi-unit housing:
- RESPECT, a project of the American Lung Association
- California’s Clean Air Project
- Smokefree Apartment House Registry
3. REASONABLE ACCOMMODATION
If you have a medical condition that is made worse by your exposure to secondhand smoke, and your condition meets the legal definition of “disabled,” then there are federal and state laws that require the landlord to make a "reasonable" accommodation for you. Examples of a reasonable accommodation could include a ban on smoking in the building, or offering to relocate you to a different unit away from the smoke.
We have a fact sheet on how these disability laws might be able to assist you (“How Disability Laws Can Help Tenants Suffering from Drifting Tobacco Smoke”). The fact sheet includes a sample letter you could use as a template for a reasonable accommodation request, and a list of fair housing councils to contact for assistance in making such a request.
You should seek legal advice to see if you qualify for disability law protections. One of the fair housing councils listed in the fact sheet might be able to assist you. Note that we cannot be your lawyer.
Another option is to bring a lawsuit against the landlord and/or the tenant. Our fact sheet "Legal Options for Tenants Suffering from Drifting Tobacco Smoke" outlines issues to consider when contemplating a lawsuit and a description of the legal claims that might apply to your case.
We do not provide direct legal services to clients, so we would not be able to represent you in a lawsuit.
Another avenue you might want to pursue is filing a lawsuit in small claims court. In this case, you would represent yourself and not have to hire an attorney. The California Department of Consumer Affairs developed a helpful handbook, “The Dos and Don'ts of Using the Small Claims Court,” to answer questions about the process of resolving a dispute in small claims court.
5. SMOKEFREE HOUSING LAW
You may also want to contact a local elected official about your problem, and suggest the City consider passing a law to protect people living in multi-unit housing from secondhand smoke. As a result of citizens like you, a number of communities have passed local laws restricting smoking in apartments and condos. If you would like more information about this option, contact us and we can put you in touch with your local community coalition working on tobacco control issues.
Whatever course of action you take, please consider your health. If that means moving to get away from the secondhand smoke, one source for finding a smokefree apartment is www.smokefreeapartments.org.
We wish you luck with this difficult situation.