[RPPTL LandTen] Residential lease issue- second hand smoke

Thu Apr 25 07:49:46 PDT 2013

HERE'S A FLORIDA COUNTY COURT CASE:

In the case Merrill vs. Bosser, 12 Fla. L. Weekly Supp. 885b (2005), Judge
Lee of Broward County held that a condominium unit owner was responsible for
damages suffered by another unit owner caused by the effects of secondhand
smoke.  The facts of the case revealed that defendant unit owner leased his
unit to a tenant who was a heavy smoker. The smoke seeped into the
plaintiff’s unit who lived below causing severe medical issues for plaintiff
and her family.  The lawsuit was brought under the theories of trespass,
common law nuisance and breach of covenant of quite enjoyment. The plaintiff
was successful on all three theories.  Regarding the breach of the covenant
of quiet enjoyment, the Court compared the situation to a landlord-tenant
case where one party interferes with another party’s use of a property to a
substantial degree.  Damages were awarded on the basis of medical expenses,
plaintiff’s loss of the use of the premises and remedial expenses.  From
this case, there could possibly be landlord liability for failure to control
secondhand smoke from seeping into other tenants’ units or the common areas
and thereby causing injury.

It seems to me that if landlord chooses to designate a building or a floor
as a non-smoking area, and a tenant signs of lease agreeing not to smoke or
permit others to smoke in the unit and stipulating to the fact that doing so
would constitute improper conduct under Florida statute 83.56 addressable by
a seven-day cure notice, the landlord would be in an excellent position to
evict if necessary.

Jeff

Jeffrey R. Mazor, Esq.
J. R. Mazor & Associates, P.A.
Presidential Circle Building 
4000 Hollywood Blvd.,  Suite 265-s
Hollywood, FL 33021
Phone: 954-962-3500
Fax:       954-962-3560
Email:   JMazor at Mazor.com

-----Original Message-----
From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Andrew F.
Garofalo
Sent: Thursday, April 25, 2013 10:39 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Residential lease issue- second hand smoke

May not be a bad idea to get witnesses (neutral if possible like a property
inspector or a Realtor) to sign affidavits which attest to the odor in the
leased space and attach those to the default notice to landlord.  

Andrew F. Garofalo
Attorney at Law | Board Certified in Real Estate Law

andrew at garofalolaw.net

Garofalo Law Office P.A.
7401 Wiles Road, Suite 319 | Coral Springs, FL 33067
T: (888) 658-8686 | F: (888) 658-7360
www.garofalolaw.net <http://www.garofalolaw.net/> 

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From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Lainie J. Simon
Sent: Thursday, April 25, 2013 10:00 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Residential lease issue- second hand smoke

Yes I have gotten (a client) out of a lease for that reason.  Sent the
notice saying that they had to fix it, pursuant to statute, and they cleaned
carpet but it wasn't enough, and we terminated.  They did not go after the
tenant. We had many people who would have testified to the odor and "feel"
of the smoke constantly intruding into the apt.  As to "liability" for
damages, never pushed that far.  In addition, several years ago my inlaws
walked out of a seasonal lease in Boynton because of the smoke and prior
presence of a dog; landlord threatened, I threatened back, and nothing came
of it.

I am also aware of people in condo/coops who were able to force the
management to filter a/c systems in buildings and improve weather stripping
around indoor hallway doors.  I believe there is recent case law in NY about
this.

On Apr 25, 2013, at 9:32 AM, Neil B. Shoter wrote:

Has anyone dealt with issues of second hand smoke/indoor air quality as
grounds to terminate  a residential lease??   A pro bono matter brought to
my attention on behalf of a residential tenant question whether a
residential tenant has grounds to terminate a lease early where second hand
smoke is making affecting habitability. 

Facts:   Does an apartment landlord/complex have any liability towards a
specific tenant (here a 21 yr old mother with a 1 yr old infant who
requested a non-smoking unit – but not in lease) where the unit is suffering
from the intrusion of second hand smoke from 1) a central air condition
system, 2) from smokers in the hallways, and 3) smoke in the existing
carpets (all three conditions are present)?  If so, does that constitute a
breach of habitability under the lease and the requirements F.S. 83.51, in
particular by means of any applicable health codes?  

Any thoughts would be welcome.

Neil

<image001.jpg>

Neil B. Shoter
Partner / LEED Accredited Professional 

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Lainie J. Simon, Esq. 
185 NW Spanish River Boulevard 
Suite 220 
Boca Raton, FL  33431 
561.445.1361 
561.997.6224(fax) 

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