Colorado Real Estate Journal - September 3, 2014
Linda sits in her car outside of her apartment after a long day. She worked a full day at the office prior to going out to a restaurant, which was followed by a trip to the movie theater and a brief visit to her neighborhood bar. She gets out of her car, walks to her apartment and opens the door. She dresses for bed, brushes her teeth, grabs a blanket and pillow, and steps out of her apartment and back into her car. Linda is unable to sleep in her apartment because her heart and lungs cannot handle the smoke that enters her apartment from her neighbor’s continuous smoking. After being told there was nothing her landlord could do about the issue, her only alternative at the moment is to sleep in her car rather than face another night of breathing difficulty. She finds it remarkable that of all the places she visited today, the only place she can’t breathe is in her own home. Forty-nine percent of Coloradans report secondhand smoke infiltration into their apartment (Colorado Department of Public Health and Environment). With cigarette smoking continually declining, currently at 17 percent in Colorado, and with smoking becoming less and less acceptable due to the state law and numerous municipal ordinances regulating the habit, individuals, such as Linda are looking for legal remedies that protect them from tobacco smoke within their homes since it is one of the few places remaining where involuntary exposure to secondhand smoke is encountered. Individuals, like Linda, may have a remedy under Colorado’s Warranty of Habitability (Colo. Rev. Stat. §38-12-503). Colorado became the 49th state to adopt a Warranty of Habitability statute in 2008. Under this statute, a landlord breaches the Warranty of Habitability if a residential premises is uninhabitable or unfit for human habitation, the residential premises is in a condition that is materially dangerous or hazardous to the tenant’s life, health or safety, and the landlord has received notice of the condition giving rise to the claim. A tenant may terminate the lease, receive damages in the amount necessary to remedy the condition, or use the Warranty of Habitability as a defense against an asserted breach. Additionally, attorney fees may be obtained if the lease allows either side to collect such fees. At this point, the scope of Colorado’s Warranty of Habitability is the subject of much uncertainty. The statute has yet to be interpreted by Colorado’s higher courts. Consequently, practitioners are left to look to cases outside of Colorado to gauge the statute’s potential application to secondhand smoke complaints. In Poyck v. Bryant, 820 N.Y.S.2d 774 (N.Y. Civ. Ct. 2006), for example, the Civil Court of the City of New York held that secondhand smoke infiltration violated New York’s Warranty of Habitability, which is worded similarly to the Colorado statute. While it remains to be seen whether a Colorado court would find a New York court’s handling of a secondhand smoke infiltration case persuasive, trial courts here, free from binding precedent, are left with a tremendous amount of discretion on this topic. Additionally, a Jefferson County trial court recently held that the residual effects of cat urine left behind from a previous tenant and insufficiently extinguished despite repeated cleaning attempts by the landlord constituted a violation of the Warranty of Habitability. If the odor of cat urine was found to render a residential property uninhabitable and sufficiently dangerous to constitute a violation to the Warranty of Habitability, such a finding easily could be made for secondhand smoke infiltration, which is a known carcinogen. In proving whether secondhand smoke infiltration creates an uninhabitable condition that is materially dangerous to the tenant’s life, health or safety, the tenant likely will present research collected over the past 30 years that has linked secondhand smoke to adverse health consequences. The 2006 Surgeon General report, The Health Consequences of Involuntary Exposure to Tobacco Smoke, provides evidence that even brief exposure to secondhand smoke causes physiological changes in a nonsmoker’s body that can have a major impact on a person’s health, especially with infants, children and adults with respiratory problems. Additionally, this report states that HVAC systems in apartment buildings permit secondhand smoke from one unit to infiltrate into other units within the building and such exposure is of concern to the Surgeon General. With strong evidence regarding the adverse health risks of secondhand smoke and the inability to fully contain tobacco smoke when there is a shared ventilation system, the primary issue to be addressed when bringing a smoke infiltration claim under the Warranty of Habitability is the amount of smoke infiltrating into the tenant’s apartment and the harm caused to the tenant from the infiltration, which will differ depending on the facts of an individual’s case. Property owners realize that legal expenses can add up quickly regardless of which side prevails, and attempting to prove the extent to which tobacco smoke is infiltrating into a neighboring apartment may be considered reasonable when such smoke has been determined to cause cancer and other health risks, this could be a significant cost to a property owner’s business. Cost savings also may be seen in reductions in cleaning costs and instances of property damage when reducing the number of smoking units within a building. With a growing level of intolerance of secondhand smoke and “nonsmoking” becoming the new norm over the past 20 years, property owners may wish to consider preventative measures and carefully analyze tenants’ complaints, rather than face a costly legal battle on this issue. Andrews is a collaborator with the Jefferson County Public Health Department in assisting multi-unit housing complexes to move toward smoke-free policies.