Legal Question in Real Estate Law in California

Re: Secondhand Smoke in apartments

Ask your pediatrician for a letter saying that the second hand smoke is harmful for your baby. If there is any condition, such as asthma, he can point to, so much the better.

Ask the landlord for a "reasonable accommodation" for your baby's "handicap" and "medical condition." Under federal law, a medical condition is not protected and a handicap requires a "substantial" limit to one or more major life activities. California has added protection for medical conditions and has removed the requirement for a "substantial" limitation. Under California law, any limitation of a major life activity (such as breathing) qualifies for protection.

This California law is new and not tested, but it should at a minimum give you some leverage in negotiations. If you don't get results you might consult a lawyer familiar with California fair housing law.

Re: Secondhand Smoke in apartments

There is very little settled law in California on the question of smokers' rights vs. rights of other tenants to a smoke-free environment. I have checked the references I normally use to verify my responses to landlord-tenant questions and find nothing useful to report to you.

In theory, the tobacco smoke fumes could be (1) a trespass, (2) a private nuisance, or (3) a violation of some specific code regarding secondhand smoke.

As to #1, traditionally trespasses required an invasion by some physical object such as a human walker, dumped garbage or debris, or something of this sort. A few recent cases have extended the law to include invasion by microscopic dust particles, but I think smoke would be a tough sell in court.

As to #3, I know of no statewide law, so maybe you need to check locally to see if your city has any law applying to secondhand smoke in apartment buildings.

That leaves #2, private nuisance. Establishing a private nuisance requires showing that the offending party's use of his property (here, as a place to smoke) is downright unreasonable and substantially lessens your enjoyment of your property. The fact that you are a tenant and not the owner also detracts somewhat from your case. On the whole, I think you are more likely to lose than to win a suit for nuisance, and given the time and cost there are undoubtedly more practical remedies such as correcting ventilation and air flows (you could perhaps slightly pressurize your place with a window air conditioner, thus causing air to flow out of rather than into your apartment), or moving. If this is a multi-unit building, maybe your landlord could switch you into a different unit.

Re: Secondhand Smoke in apartments

Boy, the situation you describe really ticks me off. The fact that the offending parties are attorneys makes me more riled up.

Mr. Snitow's suggestions were certainly creative. But, I believe unnecessary. The law affords you the quiet enjoyment of your property. Cases have been won in California on offensive odors alone. The noxious and toxic nature of second hand smoke is well established. It is legal to dump water out of your window as well, but not if it lands into your apartment.

My advice? Get aggressive! You and your child deserve the right to live in a non-smoking household and should not need to move because of inconsiderate and obnoxious neighbors, attorneys or not. Of course you will need to be willing to seek redress in the courts. But, moving is expensive too, and bad health even more so.

The law of private nuisance, is, I think a no brainer here. Joining your landlord for his failure to secure to you the quiet enjoyment of your property is another option worth considering.

Let me know if you want to explore this further

Phew! As you can tell, this really makes me mad.