Legal Options Tenants SHS

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

neighbor could

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

your situation.

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

landlord based

on nuisance and

other claims. A

California Court of

Appeal ruled that

secondhand smoke

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

provide advisory

services to help the

parties navigate

the process from

start to finish. In

addition, helpful

guides to using

small claims court

are available on

the Internet.

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.

Available remedies

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

involving $7,500

or less and cannot

generally issue an

outright injunction.

A small claims court

may instead issue a

“conditional judgment,”

which allows the person

being sued to choose

between taking a

certain action or paying

a fine. For example, a

conditional judgment

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.

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