SECOND-HAND SMOKE

By Adrian J. Adams, Esq., Adams AuCoin & Kessler LLP

Q.   Are there any cases involving condominiums and second-hand smoke?

A.  There are only a handful of cases. Following are two trial court decisions involving excessive smoke.

In Florida, the tenant of a condo owner acquired a roommate who was a heavy smoker. The smoke seeped into a neighboring unit. After the neighbor made numerous complaints to the association, the board required the tenant to move out. Even though the nuisance ended when the tenant moved, the neighbor sued for damages sustained while the smoker lived in the unit. The court commented that secondhand smoke that is "customarily part of everyday life" would not be actionable in trespass. However, the court found that the smoke in this case was excessive and constituted a trespass, breached the covenant of quiet enjoyment, and was a nuisance. The court awarded the plaintiff $1,000 in damages and $275 in costs. Merrill v. Bosser (County Ct 17th Jud. Cir., Broward Co., FL, 2005)

 In Massachusetts, a jury found against two tenants who worked out of their rented condominium and smoked 40 to 60 cigarettes a day. The owner of the unit sought to evict the tenants after receiving complaints from adjoining units about the strong smell of smoke. The jury found that the tenants had breached their lease by creating a nuisance and interfering with the rights of other owners. Harwood Capital Corp. v. Carey (Boston Housing Court Docket No. 05-SP-00187, 2005)

Q.   Are there any cases involving condominiums and second-hand smoke?

A.  There are only a handful of cases. Following are two trial court decisions involving excessive smoke.

In Florida, the tenant of a condo owner acquired a roommate who was a heavy smoker. The smoke seeped into a neighboring unit. After the neighbor made numerous complaints to the association, the board required the tenant to move out. Even though the nuisance ended when the tenant moved, the neighbor sued for damages sustained while the smoker lived in the unit. The court commented that secondhand smoke that is "customarily part of everyday life" would not be actionable in trespass. However, the court found that the smoke in this case was excessive and constituted a trespass, breached the covenant of quiet enjoyment, and was a nuisance. The court awarded the plaintiff $1,000 in damages and $275 in costs. Merrill v. Bosser (County Ct 17th Jud. Cir., Broward Co., FL, 2005)

 In Massachusetts, a jury found against two tenants who worked out of their rented condominium and smoked 40 to 60 cigarettes a day. The owner of the unit sought to evict the tenants after receiving complaints from adjoining units about the strong smell of smoke. The jury found that the tenants had breached their lease by creating a nuisance and interfering with the rights of other owners. Harwood Capital Corp. v. Carey (Boston Housing Court Docket No. 05-SP-00187, 2005)

Adrian J. Adams, Esq., is a Managing Partner of the law firm of Adams & Kessler LLP