Legal Options for Tenants Suffering from Drifting Tobacco Smoke
If tobacco smoke drifts into your apartment from a
neighboring unit, causing you illness or discomfort,
you may wonder whether you can take legal action.
Suing your neighbor or landlord is an option, but
it should be your last resort. Lawsuits are time
consuming, expensive, and contentious, and the
outcome is always uncertain. In a lawsuit regarding
drifting tobacco smoke in an apartment building, the
result is especially unpredictable because very few
cases, and no state laws, are directly relevant.
Before suing, you should try to reach an agreement
with your neighbor to limit where and when s/he
smokes. You also could ask your landlord or property
manager to make certain areas of the building
smokefree. In addition, you could work to pass a law
in your community to address the problem of drifting
smoke in multi-unit residences. If these approaches
fail, you may even want to consider moving.
If you reach the point where a lawsuit seems to be
your only option, this fact sheet outlines several
things to consider.
Evaluating Your Case
To help you evaluate your potential lawsuit,
ask yourself three questions: What harm have I
suffered? Who is responsible? And what do I want
to get out of a lawsuit?
What harm have I suffered?
As a general rule, it is unwise to file a lawsuit unless
you have suffered significant harm. Your chance
of convincing a court that you have a justifiable
legal claim is far better if you can show that you
have been harmed badly by repeated, unwanted
exposure to secondhand smoke in your apartment
—for instance, if you have visited a doctor with
frequent respiratory complaints, missed work due
to illness caused by the smoke, stayed away fromhome when you know your neighbor tends to
smoke, or kept your windows closed in hot weather
or your heater off in cold weather to prevent smoke
from entering your unit.
Who is responsible?
Depending on your
situation, it may be
your neighbor and
your landlord. Your
be responsible for
harming you directly
by smoking, and
your landlord could
be responsible for
knowing about the
drifting smoke and
failing to do anything
to protect you from
it. So you may be able
to sue both your landlord and your neighbor, or you
may be able to sue only one or the other.
What do I want to get out of a lawsuit?
The goal of any lawsuit is to obtain a “remedy”
that either stops or compensates for the harm.
In a case involving secondhand smoke exposure
in an apartment building, you would probably
seek money from the person you sued (“money
damages”) and/or an order from the court
requiring the person you sued to do or stop doing
something (an “injunction”). Money damages
might help you cover moving costs, medical bills,
or lost pay. An injunction might force your landlord
to designate certain units smokefree or provide
you with a different unit, or it might order your
neighbor to smoke only at certain times or places.
Before filing a lawsuit, consider what you are
hoping for and whether it is worth a legal fight.
Possible Legal Claims
Depending on your circumstances, there are a
variety of legal claims that might serve as the
basis of your argument in court. Later in this fact
sheet you will see why, if you take your case to
small claims court, you do not need to learn the
names or details of these legal claims. If you hire a
lawyer to bring your case in trial court, your lawyer
will evaluate which claims are best suited to your
In California, very few cases apply directly to
the problem of drifting tobacco smoke in an
apartment building. Moreover, state law currently
does not restrict smoking in apartments.
you live in one of the few cities in California that
has specifically prohibited smoking in multi-unit
housing or declared secondhand smoke to be a
nuisance, your lawsuit would rest on broad legal
claims that are not specifically designed to solve
Legal claims that might be brought against a
neighbor include battery, harassment, intentional
infliction of emotional distress, negligence,
nuisance, and trespass.
At least two courts in California have been open to
claims brought against a neighbor for harms caused
by drifting tobacco smoke. In 1996, a Los Angeles
couple sued their neighbor for harassment because
he smoked on a regular basis in the garage under
their unit, forcing them to leave their home for
hours at a time. The trial court issued a restraining
order instructing the neighbor to stay away from his garage while smoking. In 2004, a trial court in
Riverside County ruled against a smoking neighbor.
The court held that it is possible to win negligence
and nuisance claims for exposure to drifting
tobacco smoke if it is sufficiently extreme, constant,
and noxious. Although these two cases suggest
that courts in California might be sympathetic to
apartment residents who suffer from a neighbor’s
secondhand smoke, neither case is a “published”
decision, which means that they cannot be used to
support future lawsuits.
Legal claims that might be brought against a
landlord include nuisance, constructive eviction,
violation of the implied covenant of quiet
enjoyment, negligence, and violation of the
implied warranty of habitability.
In 2009 a California court held that a landlord
who allowed smoking in outdoor common areas
could be held liable for creating a public nuisance,
after the family of
a young girl with
asthma sued the
on nuisance and
other claims. A
California Court of
Appeal ruled that
in the outdoor
common areas of an apartment complex could
in fact constitute a nuisance. The Court of Appeal
sent the case back to the lower court for trial to
determine whether the secondhand smoke in the
outdoor areas of this particular complex is enough
to constitute a legal nuisance.
Courts in other states have also held landlords
liable for drifting smoke. In an Oregon case, a jury
found that a landlord breached the warranty of
habitability by moving a known smoker into an
apartment below a nonsmoking tenant who was
sensitive to secondhand smoke. The jury awarded
the tenant a 50 percent rent reduction and damages
to cover her medical bills. The housing court in
Boston held that drifting cigarette smoke from a
downstairs bar was a serious enough intrusion into
a tenant’s apartment to violate both the warranty of
habitability and the covenant of quiet enjoyment. The court awarded money damages to the tenant
and ordered the landlord to fix the problem. In New
York, a trial court ruled that secondhand smoke from a neighboring unit or common area can give
rise to a breach of the warranty of habitability and a
constructive eviction when the landlord fails to take
any action to remedy the situation.
In addition to the case in California holding that
drifting secondhand smoke in an apartment
complex may constitute a nuisance, there are
scientific findings that should help boost your
case against your neighbor and/or landlord.
The California Air Resources Board has added
secondhand smoke to its list of toxic air
contaminants, and the U.S. Surgeon General has
declared there is no risk-free level of exposure to
secondhand smoke. These findings, along with
a vast amount of other evidence documenting
the negative health effects of secondhand smoke,
could help convince a court that you have suffered
serious harm from repeated, unwanted exposure to
drifting smoke in your apartment.
Trial Court or Small Claims Court?
If you decide that you want to file a lawsuit, there
are two types of courts available to hear your case:
regular trial court and small claims court. (Every
trial court in the state must have a small claims
court division that is designed to resolve minor
civil disputes.) These two types of courts differ in at
least three important ways.
Role of attorneys
In trial court, both sides generally hire lawyers to
represent them. In small claims court, the parties
must represent themselves. Note that California
law requires small
claims courts to
services to help the
the process from
start to finish. In
guides to using
small claims court
are available on
Formality of proceedings
A trial court case is governed by elaborate rules
about filing the case, presenting evidence, and
so on. Small claims court actions are informal;
they use a simple approach to conflict resolution enabling the judge to decide a case quickly,
focusing on basic principles of fairness instead of
legal technicalities. In order to file a small claims
court case, an individual must be able to tell his or
her side of the story but does not have to name the
legal claims that apply to the case.
A trial court judge has the ability to award a wide
range of remedies, including money damages
and an injunction ordering the person being sued
to do or stop doing
something. A small
claims court, however,
may only hear cases
or less and cannot
generally issue an
A small claims court
may instead issue a
which allows the person
being sued to choose
between taking a
certain action or paying
a fine. For example, a
might instruct a tenant to either stop smoking on
her patio or pay $5,000 to her neighbor.
Given these three essential differences between
trial court and small claims court, one or the other
may seem better suited to your case.
Trial court would be a good choice if you can find a
lawyer willing to represent you who can make solid
legal arguments about how some of the claims
mentioned above apply to your case. If you win in
trial court, you would not only benefit yourself, but
you could also contribute to advancing the law by
clarifying how certain general legal theories apply
to drifting smoke in multi-unit housing.
You might choose to sue in small claims court if you
cannot find a lawyer to represent you or if you want
your case resolved quickly and efficiently. A small
claims court judge will be less worried about the
exact legal basis of your claim than about finding
a fair solution to your problem. Given that there is
barely any law in California addressing secondhand
smoke in apartments, the focus on fairness over
legal precision may end up working in your favor.
If a lawsuit seems to be your only option, do not
give up hope. Our society is gradually beginning to
recognize the problem of drifting tobacco smoke
in multi-unit housing—and so are the courts.
California has joined an increasing number of states
across the country where courts have found in
favor of tenants who sued their neighbors or landlords
over drifting secondhand smoke. Your case
might contribute to this trend in California.