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Warning: Smoking is not only dangerous to your health, but can also get you evicted from your home. So reads the new warning label which may need to be printed on cigarette packs after a recent housing court decision allowing a landlord to evict a tenant in a condominium based on their smoking in their unit.

The facts of the recent case are not unusual. A unit owner leased his residential condominium unit pursuant to a written lease. The lease did not ban smoking in the unit, but did require the tenants to abide by the condominium’s by-law and rules. In this case, the condominium also did not have any specific prohibition on smoking, but the by-laws did contain the common prohibition of causing a nuisance in the unit. Specifically, it provided that no unit would be maintained in a condition which constituted a nuisance.

Shortly after moving in, the adjoining unit owner, who also happened to be a Trustee of the Condominium, complained to the tenants that there was a strong odor of smoke coming from their unit. Other unit owners also complained that they could smell smoke in the hallway. Ultimately, the association ordered the Unit Owner to cause the tenants to cease the creation of what they considered to be a nuisance. The Board also imposed a fine of $75 per day until the nuisance was abated. Faced with the possibility of mounting fines and potential legal action, the Unit Owner commenced an eviction action in the Boston Housing Court claiming that the creation of unreasonable smoke in the unit constituted a nuisance and, as such, was a violation of the tenants’ lease. After a full trial before a jury, a judgment was entered for Landlord authorizing the eviction of the tenants.

The entire case turned on whether the jury found that the smoke being created by these specific tenants was such that it constituted a nuisance. In this sense, the case is neither unique nor novel. There have been numerous cases where a tenant (or unit owner for that matter) has been evicted for causing a nuisance in their unit. These cases range from the occupant who was operating a nightly poker game in the unit (with a cast of characters straight out of the bar scene from Star Wars), to the tenant that maintained over 50 birds in the unit. In each of those cases, while there was no specific prohibition on the activity, it was deemed to constitute a nuisance and therefore could be prohibited per the by-laws. In this case, the jury must have found that the level of smoke coming from this unit was such that it had reached the level of a nuisance. In fact, the Trustees were not arguing that smoking in and of itself was a nuisance. Smoking was indeed allowed in the units and several other unit owners acknowledged that they smoked in their units. Rather, it was the fact that the tenants were smoking at such a level and in such a manner that the odors were able to enter other units and the common areas that led to their demise. The lessons to be learned from this case depend on which hat you wear, that of the landlord or that of the association.

THE LANDLORD’S LESSONS

Ten years ago, landlords would never have thought about including a lease clause dealing with smoking. However, as the body of evidence showing the harm of second-hand smoke has grown, so have the demands from neighbors to prohibit smoking. It is not uncommon now for tenants to claim that their quiet enjoyment is being adversely affected by the smoke coming from adjoining apartments and that the landlord has a duty to prevent them from suffering the harmful effects of this second-hand smoke. While each smoking decision to date has turned more on the unreasonable amount of smoke or the failure to properly seal cracks which have allowed smoke to enter other apartments, the day may soon arrive when a tenant attempts to claim that the mere presence of smoke is a nuisance regardless of the extent of smoke. As such, landlords should seriously consider include some form of non-smoking clause in the lease, either prohibiting smoking, or clarifying when smoking will be considered either unreasonable or a nuisance. While,the landlord in this case, did score a “win”. I assume the cost of that victory, in both legal fees and time, lessened the feeling of victory. Had the landlord included a specific lease clause on this issue, the case would presumably have been resolved in a more efficient and less costly manner. In addition, including a clause dealing with this issue in the lease allows all tenants to be aware of the policy on smoking, such that non-smoking tenants, or those with a low tolerance for same, can be on notice of what to expect.

In this case, the Landlord at least was able to reap the benefits of including a clause in the lease requiring the tenants to comply with the condominium by-laws and rules. Unit Owner’s leasing their units should be strongly advised to include such a clause, and in fact, many condominium’s require such a clause. A landlord who does not include such a clause can be faced with a situation where the association begins to initiate fines based on a tenant’s violation of a condominium rule, and yet the landlord lacks any legal basis to evict the tenant since the conduct is not a violation of the lease. In this case, for example, if the landlord had not included this clause, the association could have continued to fine the unit owner while the unit owner was powerless to evict the tenant as there was no provision of the lease prohibiting this conduct. As such, it is imperative that those renting their units include a lease provision which requires the tenant to comply with the terms of the by-laws, rules and other regulations of the condominium in which the unit is located.

THE ASSOCIATION’S LESSON

As the leader of the A-Team used to say at the end of each episode, “I love it when a plan comes together”. This case shows how well a case can work when you following the “plan” An Association has significant powers to enforce its by-laws and rules when they simply follow their plan of action. In this case, the Association initially confirmed the violation by obtaining independent confirmation from several sources. Not only did the adjoining unit owners confirm the extent of the smells, but the Association documented that the smoke was entering the common area hallways. They then began to issue fines against the unit owner to compel the removal of the tenants. The imposition of fines is an effective method of compelling a unit owner to comply with his/her obligations. Presumably, they also informed the unit owner that his failure to take legal action would result in the filing of a civil action to compel compliance and that all of the legal fees and costs of such an action would be imposed against the unit owner and would constitute a lien on his unit. Such a process effectively forces a unit owner, who often lives outside the condominium and may only be concerned about receiving the rents, to take action. Through such a process, an association maintains the ability to compel unit owners to take action to prevent ongoing violation of their constituent documents, whether by a tenant or by a unit owner. This case, therefore, provides us of an example of an association’s effective use of its powers to ensure that all units owners, and their tenants, comply with the basic obligations of the by-laws.

Associations should also seriously consider the adoption of a smoking policy. As stated above, relying on the boilerplate provision prohibiting a “nuisance” requires a finding that the level of smoking in the unit has risen to that of a nuisance. If you do not want smoking in the common areas, the association should adopt such a policy. If you want to consider prohibiting smoking in the units, the association should consider an amendment to the by-laws. The point is that this issue should be addressed before an issue arises so that the prohibited conduct is clear and is not subject to interpretation by either a judge or jury. Such a policy also allows unit owners to understand their obligations and insures that everyone is working from the same basic understanding of what is required. Otherwise, a costly legal battle could ensue in which the outcome could depend on whether the smoke is so “bad” that is constitutes a nuisance.