By Robert Nislick
Despite the fact that the adult cigarette smoking rate has hit an all-time low, Massachusetts landlords, apartment dwellers, condominium unit owners, and property managers occasionally have to deal with issues related to smoking neighbors.
Landlords often want to know how they can prohibit a new tenant from smoking in the apartment they are renting. The landlord can have the tenant sign a “NO-SMOKING ADDENDUM” to the lease, and this will forbid the tenant and guests from smoking anywhere on the landlord’s property, inside and out. If the tenant violates the provisions of such a no-smoking addendum, the lease may permit the landlord bring a cause eviction after serving a 7-Day Notice to Quit.
But let’s say the landlord has not expressly prohibited the tenant from smoking. What happens if other residents are becoming sick or are significantly affected by the smoker next door? The lack of a specific lease provision prohibiting smoking should not limit the landlord’s ability to evict a tenant whose smoking is significantly affecting the quiet enjoyment of other tenants.
A landlord may seek possession of premises occupied by a tenant alleging that the tenant’s excessive smoking within his unit is adversely affecting the quiet enjoyment of other residents of the building. See Fairfield Bay Towers d/b/a/ Carson Towers v. Shinney, Boston Housing Court No. 13H84SP003583 (Pierce, C.J.) (Jul. 16, 2014).
Secondhand smoke may become so problematic for non-smoking tenants that a failure by the landlord to abate the problem may constitute a breach of the covenant of quiet enjoyment and a breach of the implied warranty of habitability. See 50-58 Gainsborough Street Realty Trust v. Reece, Boston Housing Court No. 98-02279 (Daher, C.J.) (Jun. 8, 1998). An affected tenant may be able to successfully withhold rent from a landlord who has not fixed the secondhand smoke problem. A landlord may potentially be liable to pay multiple damages, attorney’s fees and costs to the aggrieved tenant.
If non-smoking tenants start to complain about a smoking neighbor, it may advisable for the landlord to terminate the smoker’s tenancy, particularly where the non-smokers allege that the smoke is creating a nuisance and interfering with their quiet enjoyment. See Harwood Capital Corp. v. Carey, Boston Housing Court No. 05-SP-00187 (Nasif, J.) (Mar. 8, 2005). Additionally, the landlord may be able to obtain a preliminary injunction prohibiting the smoker from smoking anywhere in the building including within his or her unit.
Even if the lease is silent concerning smoking, if the court issues an injunction, or if the parties enter into an agreement for judgment, these are courts orders which will take priority over all lease provisions, or lack of lease provisions regarding smoking. See The Community Builders, Inc. v. Megna, Boston Housing Court No. 11H84SP002184 (Muirhead, J.) (Oct. 31, 2012).
What if the tenant allows her guests to smoke? In one case, the Housing Court granted possession to the landlord where the tenant failed to stop her family members from smoking, in violation of a no-smoking policy, even though she herself did not smoke. See Berkshire Apartments v. Macwhinnie, Western Housing Court No. 13-SP-4391 (Fields, J.) (Jul. 7, 2014).
Does the smoker have any ability to prevent his eviction? It may be possible for the tenant and landlord to negotiate an agreement whereby the tenant may stay so long as he refrains from smoking in the apartment and in common areas. The Court may also stay the issuance of the execution provided that the tenant refrains from smoking. See Lillien Realty LLC v. Tallini, Worcester Housing Court No. 13-SP-4629 (Horan, J.) (Dec. 17, 2013).
Robert Nislick is a Massachusetts landlord-tenant lawyer who practices in Boston Housing Court, Worcester Housing Court, Northeast Housing Court, Southeast Housing Court, Western Housing Court, and the summary process session of the District Court.