A. J. Johnson Consulting Services, Inc.

Two recent court cases have strengthened the rights of landlords to either permit smoking or to prohibit smoking in apartment communities.

In Davis v. Echo Valley Condominium Association, Michigan (6^th. Cir.), December 2019, a federal appeals court ruled that a resident was not entitled to a building-wide smoking ban as a reasonable accommodation.

Facts of the Case

The resident was disabled, with a history of asthma multiple chemical sensitivity disorder.
She lived in a condo unit on the second floor of a four-unit building where units shared a common entryway, basement, and attic.
For a number of years, the community had received complaints from residents that they could detect odors, including cigarette smoke, from neighboring units.
Michigan state law permits smoking in one’s home.
The bylaws of the property did not prohibit smoking in units.
In the first written complaint, the resident emailed a property management employee to report that the couple renting the unit below her was home all day and night chain smoking, which affected her "breathing, causing constant coughing, and near asthma attacks."
The Homeowners Association (HOA) board instructed a management employee to send a letter to the owners of the downstairs unit, asking for their assistance in keeping the smell contained in the unit.
A few months later, the board paid a HVAC contractor to install a $275 fresh-air system on the resident’s ductwork that allowed her furnace to draw in fresh air from outside rather than stale air from the basement.
The resident stated that while the unit helped, it did not eliminate the odor.
The owners of the downstairs unit were contacted by the attorney for the complaining resident but would not ask the downstairs tenants to stop smoking since the bylaws permitted the practice.
The downstairs tenants agreed to purchase an air purifier to eliminate residual cigarette smoke, but this did not satisfy the resident.
The resident sued the HOA, property management company, owners of the unit, and their tenants, alleging that by refusing to ban smoking in the building, the HOA violated fair housing law.
Shortly after, the downstairs owners did not renew the lease of their tenants and sold their unit.
The resident continued the litigation, maintaining that she still smelled cigarette and marijuana smoke from another downstairs neighbor (not the original unit that was the subject of the complaint).
The resident again requested that smoking in the building be banned.
The HOA circulated a proposal to ban smoking at the property, but the proposal failed to pass.

Decision

The court ruled that the resident’s requested smoking ban was not reasonable because it would fundamentally change the project’s smoking policy by barring residents from engaging in a legal activity in their own property.

The resident appealed.

The appellate court affirmed the lower court decision.

Reasoning

The community did not violate fair housing law by refusing the resident’s request to ban smoking in her building.
The request did not qualify as a reasonable accommodation since the phrase "reasonable accommodation" means a moderate adjustment to a challenged policy, not a fundamental change to a policy.
An adjustment goes too far if the costs of implementing it would exceed any expected benefits it would provide to the person requesting it.
The resident’s proposed smoking ban amounted to a fundamental alteration of the community’s smoking policy; no one would describe a change from a smoking-permitted policy to a non-smoking policy as an "accommodation."
The proposal would intrude on the rights of her neighbors who smoke, who may well have bought their units because of the policy permitting smoking.

The resident has asked the U.S. Supreme Court to consider her appeal.

In a second case, NYC C.L.A.S.H. v Carson, District of Columbia, March 2020, a DC court granted HUD judgment without a trial in a case filed by a smoker’s rights organization, challenging HUD’s regulation banning smoking in public housing, including individual residential units. The court rejected the organization’s claim that the rule interfered with residents’ fundamental right to engage in legal activity in the privacy of their homes, because smoking in one’s home is not protected by the right to privacy. The rule satisfied constitutional requirements because it is rationally related to legitimate governmental interests - to create safe housing conditions and easing the shortage of safe homes for low-income families.

In May 2020, the organization filed an appeal of the court’s decision.

Pending any final appeals, these two cases strengthen the rights of property owners with regard to whether or not they wish to allow smoking in their communities, and the Davis case in particular makes clear that smoking in a building does not have to be banned as a reasonable accommodation to a disabled person.

Smoking in Apartments - Two Recent Court Cases Illustrate Landlord Right to Permit or Prohibit Smoking

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