John Roska: No right to smoke-free environment when renting

John Roska: No right to smoke-free environment when renting

Q: My downstairs neighbors are heavy smokers. Their smoke comes up into my unit, and really bothers me. They ignore my requests to do something. The landlord says there's nothing he can do. Do my neighbors have the right to smoke so much that it causes me problems? Is there any solution to this problem?

A: The news is not good for nonsmokers. In general, there's no right to a smoke-free environment in rental housing.

That's changing in public housing, where Uncle Sam is the landlord. HUD has been encouraging smoke-free housing for years, and will require it in July 2018 in all public housing.

Some public housing complexes have already gone smoke-free, as have some privately owned but HUD-subsidized complexes.

Private landlords are free to prohibit smoking, and many do. But if the lease doesn't ban it, smoking's OK.

Where smoking is not banned, secondhand smoke would be a violation of your lease only if it violated your "right of quiet enjoyment." That would probably be tough to prove.

Every lease between a landlord and a tenant guarantees the tenant the right of quiet enjoyment of the premises they're renting. That right is implied by law, even if there's only an oral lease.

The right of quiet enjoyment is something like a right to privacy. It means the tenant gets to enjoy life in their apartment quietly, undisturbed by other people (including the landlord) and other things.

Bu that's not a guarantee of absolute peace and quiet. Living together with other tenants requires a certain give and take — complete silence, for example, just isn't possible, so you have to live with a little neighbor noise.

Just as a neighbor's stereo can become too loud, there's probably a point where secondhand smoke becomes too much. But it's simply impossible to say where that point is. And it will be difficult to prove in some objective way how bad a particular smoke problem is.

If the landlord's not willing to go after the tenant, I see two options. First, you could say the smoke amounts to a "constructive eviction" of you from your apartment. That basically means your place is unlivable. A constructive eviction is usually the result of things like no heat, or rodent and insect infestations, but it might be caused by a severe secondhand smoke problem.

A constructive eviction terminates your lease, ending your obligation to pay rent, and permitting you to move out. But if your landlord disagrees, and insists that you still owe rent, you may end up in court having to prove to a judge that your place really was unlivable.

Second, you could try to reduce the smoke with ventilation, or some other engineering fix. It's a long shot, but maybe you could make your landlord install the equipment as an accommodation of your disability under the Americans with Disabilities Act. Or you could bite the bullet and pay for the fix yourself.

John Roska is a lawyer with Land of Lincoln Legal Assistance Foundation. You can send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820. Questions may be edited for space.