Pittsburgh Legal Back Talk

Legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus.

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The Last Bastion of Smoking is Collapsing — the Home.

Posted By Cliff Tuttle | October 4, 2014

No. 1,107

Image: smchealth.org There appear to be places around the country that already ban smoking in apartment dwellings.

Image: smchealth.org
There appear to be places around the country that already ban smoking in apartment dwellings.

The Allegheny County Housing Authority recently announced that it is banning smoking inside the building at 5 public housing locations. As the New York Times and many other publications have observed, this is a national trend.

Of course, some residents have expressed outrage and disbelief that the Constitution does not protect them from the prying eyes (or nose in this case) of the government in the sanctuary of their home.  But the truth is, it is all a matter of contract.  If the lease says you cannot keep a pet in the apartment, why not extend the same principle to smoking?

Smoking bans are not confined to public housing, of course.  There are residential buildings that ban smoking in Pittsburgh and elsewhere — predominantly higher-end ones.  Non-smoking apartment buildings are often sought out by renters who have severe allergies to smoke or lung conditions.  One I know of not only evicts smokers, but gives offended non-smokers the right to terminate the lease if bothered by tobacco smoke.  You wouldn’t think that occasional smoking in the next apartment would be readily detectable or provable.  Seems logical, but just try it in a non-smoking apartment building.

A recent question posted on AVVO, poses this issue from the tenant’s perspective where the lease is silent. The questioner writes:

“Cigarette smoke triggers migraines for me, and it’s been miserable since the new tenants moved in. This is my 5th year living here, and I haven’t had any major issues until now. The apartment building has “No Smoking” signs on the doors from outside, but my landlord says it’s not in the lease so there’s nothing they can do. They tried to plug the space in the baseboard heating between the apartments (with packing blankets? seems like a fire hazard, but not my business), but it’s an old building and it seems that there’s only so much that they can do. 

Am I stuck? I’m so tired of not being able to stay in my own home without getting sick.

I do have the emails in which I asked my landlord to address the issue & the responses where they said that they couldn’t do anything more, if that’s at all helpful. They suggested that I get an air purifier or light a candle; I had a humidifier with a filter, but one that was supposed to last 3 months lasted about 4 days before it was black. It also didn’t help terrifically, nor does the candle (it covers it up, which doesn’t help the migraine). I’m young (23) and have an auto-immune disease, so my health is something I try to protect as much as possible.”
I gave the following answer on AVVO:
” As a practical matter, you do not yet have a legal remedy. I say not yet, because the law is trending in this direction. Public housing projects around the country are banning smoking and I think that many private landlords will pick up on the idea.Nevertheless, if you are willing to do so, you could just refuse to pay the rent, forcing the landlord to commence eviction proceedings. Of course, you would have to have someplace lined up to move right away. Finding a smoke-free building may be difficult at the present time. Your landlord, like most, probably uses an older form lease that doesn’t have a smoking ban.Although there may be other legal avenues available, they will take too long and cost too much. By the time a non-landlord-tenant suit would come up for trial, the lease would have expired.”

Yes, you the tenant can  always stop paying and be ready to move.  But, not surprisingly, that is not the outcome that most tenants in similar situations expect.  They want the landlord to evict the other tenant or make him stop smoking. The American Nonsmokers Rights Association is encouraging residential tenants to file lawsuits intended to do just that.

Pittsburgh and most other major cities passed ordinances decades ago banning smoking in restaurants, offices and other public places.  Some states, including Pennsylvania, have followed. There are a growing number of statewide smoking bans outside Pennsylvania and some appear to apply to private apartment buildings.  It is only a matter of time until the Pittsburgh City Council passes an ordinance banning smoking in private apartment buildings.



CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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