Monday, January 16, 2012

What can be done to stop secondhand smoke from entering your condominium unit?

Recently a member of my Condo and HOA Law & Living group on LinkedIn asked the following question of our approximately 2,400 nationwide members.

"What is a condominium owner's rights when his or her unit is saturated in secondhand smoke from the unit above them and below them? Are there laws that address this issue and, if so, have they been enforced in Florida?"

This question kicked off some heated discussion (pardon the pun) and resulted in an extraordinarily large number of comments both from smokers and non-smokers alike. Some of the commentary ran a little afield of the original question and veered off into topics ranging from the science on secondhand smoke to civil liberties and everything in between.

However, for the benefit of Sun Sentinel blog readers, I will repost my response to the question here:

There is only one Florida case that I have found and it is a 2005 Broward County court case that is not published so it has minimal precedential value but it is certainly persuasive. I suspect most other cases have been settled so we have nothing to rely upon in terms of caselaw. The case I found is Robin Hanes Merrill v.Jim Bosser, Case No. 05-4239 COCE 53.

In that case, the court starts out saying that the case is "not a case about secondhand smoke, rather, as persuasively argued by the Plaintiff, it is about excessive secondhand smoke." In 2003, the Plaintiff and her family purchased a unit at the Palm Aire Condominium in Pompano Beach. The Defendant was living in a unit one floor up and one unit over from the Plaintiff. The Defendant was a smoker who smoked about a pack a day. Initially, the Plainiff had no problems with the Defendant's smoking but the Defendant later acquired a tenant who was also a smoker and that's when the problems began. The Plaintiff acknowledged in her complaint that her family is "hypersensitive" to smoke due to a history of respiratory allergies.

The Plaintiff installed air purifiers in her unit to no avail and the association installed a mechanical fan to draw air from the common shafts up through the roof. This also did not resolve the problem. The smoke got so bad that on several occasions the family slept elsewhere and one time the smoke set the Plaintiff''s smoke detector off.

The Plaintiff brought suit against the Defendant for damages based on the theories of trespass, common law nuisance and breach of contract. In Florida, the focus of the tort of trespass is the "disturbance of possession". As it pertains to smoke, secondary authority has summarized the status of the law as it relates to trespass as follows: "A trespass need not be inflicted directly on another's realty, but may be committed by discharging a foreign polluting matter at a point beyond the boundary of such realty."

The Broward County Court found that the excessive nature of the smoke in this case did constitute a trespass. The Court also found that the excessive secondhand smoke had created an actionable nuisance for the Plaintiff. Florida courts have allowed a nuisance to also proceed based on odors created by another party. The Broward County Court also cited the Court of Appeals of Nebraska which had held that to have the use and enjoyment of one's home interfered with by smoke, odor and similar attacks upon one's senses is a serious harm.

Lastly, the Broward County Court addressed whether the excessive secondhand smoke constituted a breach of covenant of quiet enjoyment. The Court acknowledged that in Florida there was no case on point but relied on a Massachusetts Housing Court Ruling in 50-58 Gainsborough Street Realty Trust v. Halle. The Halle Court ruled that while smoking is legal, secondhand smoke can be considered a breach of covenant of quiet enjoyment. The only weakness in the Plaintiff's case in Merrill v. Bosser is that she failed to provide competent evidence demonstrating the extent of her damages. The Court awarded her the sum of $1,000 plus costs in the amount of $275.00 to cover medical expenses, loss of use of the premises and remedial expenses.

It is important to note that this is a case where an owner sued an owner. It is not a case where an association sued an owner for violation of the covenants or for a nuisance. However, the arguments set forth in this case could, in my opinion, be used equally by a fellow owner or the association upon whom responsiblity to enforce the covenants rests.


  1. Thank you Donna. I have a similar issue in NC as well - excessive second hand smoke that is causing similar issues. If it crops up again I will refer to your information for some local legal guidance. Have a great day!

  2. I work at at FL timesshare resort that also rents to the public. Is the board/resort manager required to adhere to the FCIAA laws? Additionally, the resort manager smokes in the office, in common areas and in the maintenance room. Since Jan. 2012, I have reported her to 2 of 3 board members (the 3rd member being the board president as well as the managers life long personal friend)as well as to the Resort Director, I have offered photos of the managers garbage can (showing obvious use as an ashtray, as well as photos of an ashtray on her desk) they have advised me to not e-mail photo's to them, as well advised that I not discuss this issue anymore, saying, "they would not want to see me fired." What legal grounds do I have?