Monday, November 5, 2007
The New York Times today reported that an increasing number of U.S. cities have enacted legislation restricting the ability of residents in multi-unit residential buildings to smoke inside their apartments. (It also discussed increased anti-smoking restrictions in public housing units.)
Both public and private efforts to restrict smoking inside these residential buildings seek to minimize the effects of secondhand smoking and protect the rights of residents (who are against smoking) to enjoy their property. Their efforts, however, consequently impact the rights of property owners. Although there are private real estate companies that have adopted smoke-free policies in their apartments, others in the real estate industry have complained that smoke-free legislation constitutes "an erosion on private property rights."
In at least one case last year, residents prevailed in a non-payment of rent dispute after they left their apartment because the owner and the building management failed to address their complaints about their neighbor's smoking. Apparently, secondhand smoke began seeping into their unit. The judge explained that, "secondhand smoke can constitute a breach of the warranty of habitability because under [New York]’s Real Property Law, every written and oral lease contains an implicit warranty that the premises are fit for human habitation and that tenants cannot be subjected to any conditions detrimental to life, health or safety."
Rose Cuison Villazor
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