Neighboring Units in Apartments or Condominiums?
The web links (in blue) provide further helpful resources. Also see the More Helpful Materials section of this web site.
If you are suffering from exposure to tobacco (or marijuana smoke) coming from a neighboring unit in your building, GASP of Colorado (Group to Alleviate Smoking Pollution) wants you to know you are not alone! While there are no laws currently regulating smoking inside an individual unit in multiunit residences in Colorado, more than 3,000 multiunit residential buildings have implemented no-smoking policies in entire buildings or their entire grounds (see mysmokefreehousing.com). The following suggestions and information may be helpful, but please note that nothing in this paper shall constitute legal advice.
KEEP TRACK OF YOUR ACTIONS: Track the steps you take to eliminate or reduce tobacco smoke coming into your residence by writing down everything you do, say, or get in writing. Use a tracking form.
1) DETERMINE where the smoke is coming from
Tobacco smoke often migrates through ventilation systems but also can come through gaps around plumbing fixtures, baseboards, sprinkler heads, light-fixture openings, plaster cracks, bathroom fans, and other unsealed openings. Sealing the largest openings may help reduce the tobacco smoke coming into a unit; however, these options may not eliminate the harm caused by the exposure to secondhand smoke. No air-filtration device currently available can get all the toxic or cancer-causing chemicals in tobacco smoke out of the air (see U.S. Surgeon General's Report on Secondhand Smoke).
2) EXAMINE the lease
Many activities, which occur in a neighboring apartment and cause annoyance, irritation, or health problems to other residents, are often regulated or prohibited in a lease. Common examples are playing music too loudly, having late-night parties, storing paint or other flammable materials, playing ball, or other activities that cause excessive vibrations, etc. Smoking may be another restricted activity, particularly when tobacco smoke drifts from one unit to another and creates health problems others. If your lease has a clause that prohibits nuisances that harm or limit the peaceful enjoyment in your dwelling, bringing it to the attention to the management may help resolve the problem. Allowing smoking may constitute a breach of the lease, covenants, or condominium regulations. There is no constitutional right to smoke, even in one's own dwelling. In addition, Colorado's Clean Indoor Air Act of 2006 requires no-smoking policies in all indoor common areas and 15 feet from the main entryway of any residential apartment building.
3) OBTAIN medical documentation
If you or others in your residence have a health condition such as asthma, hay fever, allergies, cancer, or pulmonary or cardiac disease that makes you more sensitive to exposure to tobacco smoke (or that you must avoid exposure), then a letter should be obtained from your physician. The letter should state that you need to avoid exposure to secondhand smoke due to your health problems. Once a letter is obtained from your doctor, inform the management with a letter sent by certified mail, return receipt requested. Even in cases where there is no recognized medical condition, if may be possible to obtain such a letter by demonstrating to a physician that exposure to tobacco smoke causes specific health problems. Be sure to send copies of your correspondence to state and local health departments.
4) PUT it in writing
GASP has developed a letter-writing template with tips and suggestions on how to better communicate with management. By sending copies of your correspondence to state and local health departments the management may take the issue more. Educate the management about the economic benefits of smoke-free policies such as the reduced costs of cleaning up after smokers, the fire danger, etc. Because a majority of all adults in Colorado do not smoke and most Coloradans prefer to live in a smoke-free building, there is a big market for smoke-free housing. If you have a good relationship with management and feel you can discuss the problem calmly, you could try talking to management first and then follow up with a letter if necessary. Provide a copy of the Colorado Guide to Establishing No-Smoking Policies in Multiunit Housing.
5) SEEK out others for support
A complaint coming from many people is likely to be taken more seriously than a complaint from one person. Other people in your building may also be experiencing problems with tobacco smoke coming into their units. Talk to other neighbors, participate in resident meetings, write an article for an apartment newsletter, and post notices in elevators and on building bulletin boards. Conducting resident surveys with the consent of management can help convince management that most residents support a smoke-free policy. Contact your local health department, as they may be able to provide individual guidance, assistance, or educational materials. You also may want to inform your elected officials about the problem at the city, county, and state level.
Educate people about the dangers of secondhand smoke. People who might not otherwise be concerned about tobacco smoke may view it quite differently if they know that secondhand smoke causes lung cancer, heart disease, has 250 toxic and cancer-causing chemicals, and causes 50,000 deaths each year and that up to 50% of the air in an apartment is recirculated. For more information about secondhand smoke, visit the GASP Web site or the Surgeon General's Web site.
6) CONSIDER and propose different remedies
Suggest other steps management can take to help reduce the amount of smoke coming into you unit. These include patching up any leaks; adding more fresh-air intake into the ventilation system; changing, cleaning, or installing better filters; and restricting the amount of air exhausted through the ventilation system. Most Colorado smokers — 85% — want to quit smoking and so you may want to try to help them quit smoking by letting them know about the Colorado Quit Line (1-800-QUIT-NOW (800-784-8669), or consider offering to help pay for the costs,
7) WHAT about using the Fair Housing Act?
If you can demonstrate that the exposure to secondhand smoke affects your health and daily life activity should consider filing a complaint under the Fair Housing Act and/or file a request for reasonable accommodation for disabilities. Filing a complaint is not easy and takes time, but it may lead to a resolution. For more information about the process, review the Fair Housing Act & Secondhand Smoke paper and other options for people with disabilities provided in the Resources for Residents section. Several Colorado agencies may be able to help with this process.
8) Should I Seek Legal Assistance?
In general, you will likely have a better case if you can demonstrate and document that you have made every attempt to resolve the problem. Keep in mind that going to court can be expensive, take a long time, and there is no guarantee of winning. If you have never obtained legal help before, you may want to review online tips about how to hire a lawyer first. The Colorado Bar Association provides a list of legal resources that includes options for low-income individuals. The Colorado Trial Lawyers Association may be able to provide lawyer referrals as well.
If you have tried to resolve the issue following the steps that have been suggested in this article and are continuing to suffer from exposure to secondhand smoke, GASP may be able to refer you to a lawyer or mediator. Contact GASP and briefly explain your situation, how you are affected, and what you have done to date.
9) SHOULD moving be considered?
If it is possible to get out of the lease, then moving might be considered as an option as it may be easier, take a lot less time, and be less expensive than a lawsuit. If you move, make sure your next place is a smoke-free building. The Colorado Guide to Smoke-Free Housing provides a list of residential buildings that do not allow smoking inside or on the entire property, but be sure to visit them first, review lease and building rules, and talk to the residents about the no-smoking policy. You can also try using the Internet and searching for “no-smoking” or “smoke-free” apartments.
Where Can You Obtain Further Assistance?
GASP of Colorado can provide many other papers, fact sheets, sample surveys and letters, and other materials that are not posted on this Web site. Please let us know if these tips have been helpful, what worked best for you, and if you found something out that may help others.
The Group to Alleviate Smoking Pollution (GASP of Colorado) is a statewide nonprofit organization working to eliminate secondhand smoke from the air we breathe by advocating for smoke-free policies at work, in public places, and in multiunit housing. Your tax-deductible donation helps GASP advocate for your right to breathe smoke-free air at work, in public housing, and in multiunit housing.
Nothing in this paper shall constitute legal advice.
Please consult an attorney before pursuing legal action.
GASP of Colorado
(Group to Alleviate Smoking Pollution)
Updated September 2014