Argument: Environmental Law Violation

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Bhandari v. Laming [Australia] [October 16, 2015]

A landlord was ordered to pay compensation to his tenant (a percentage of the rent and moving costs) for breaching a rental agreement. The tenant moved out due to an ongoing issue of smoke drifting from a downstairs apartment. The appeals panel which heard the case agreed there was a structural ventilation problem with the building which allowed smoke to flow into the apartment, making it unfit for habitation. Although the landlord was not responsible for the drifting smoke, the panel agreed that he was nevertheless responsible for providing a unit fit for habitation and dismissed the landlord’s appeal.

Bonavista Management Inc. v. Absolute Star Design Ltd. [Canada] [June 11, 2015]

A business was sued by its neighbors and the property management company because of cigar smoke and fumes drifting into adjoining businesses. The court granted a permanent injunction prohibiting anyone in the offending business from smoking cigars or any other tobacco or marijuana products on the business premises. The court found that the cigar smoking violated a local smoking law, constituted a nuisance, and interfered with the use and enjoyment of other rental units.

Coppinger v. Gray [United States] [March 02, 2015]

A homeowner sued his neighbor for exposure to secondhand smoke drifting into his house. The court granted a preliminary injunction ordering the neighbor not to smoke any substances, including tobacco and marijuana, on the premises. Additionally, the neighbor must ensure that no guests smoke and must ask anyone who violates the order prohibiting smoking to leave the property. The order was to stay in place until it was revoked or until the court reached a final decision in the case. Ultimately, the case was dismissed after the party who initiated the suit dropped its claim.

Sheath v. Whitely [Australia] [April 08, 2014]

The parties to this dispute were neighbours in adjoining town-houses, both part of a relevant Strata Scheme. The applicants alleged that the respondents regularly and continually sat outside in their courtyard and smoked, and that the exhaled smoke drifted into their courtyard and home. The applicants, who were father and daughter, suffered from bronchitis and asthma (respectively). They alleged that the respondents' conduct was in breach of s117 of the Strata Schemes Management Act 1996 (NSW), which prohibits an occupier of a lot to use or enjoy the lot in such a manner as to cause a nuisance or hazard to the occupier of any other lot.

Senior Member Buckley noted that there is no scientific or medical dispute that the inhalation of second-hand smoke can cause an increased risk of adverse health effects. The Tribunal member found that the risk of exacerbation of respiratory symptoms was a "hazard" within the meaning of s117 of the Strata Schemes Management Act, and ordered that the respondents were not to smoke or allow others to smoke within 4 metres of the boundary of the applicants' dwelling.

Schuman v. Greenbelt Homes, Inc. [United States] [June 27, 2013]

The owner of a Maryland townhouse sued his housing cooperative because of exposure to his neighbors’ smoking. The court found that the owner’s claims all failed, including that his neighbor’s tobacco smoke (1) was a nuisance; (2) violated the covenant of quiet enjoyment; and (3) constituted a trespass. Additionally, the housing cooperative was not guilty of negligence because the homeowner was not harmed by the drifting secondhand smoke. The court said that although exposure to secondhand smoke did not constitute a nuisance in this case they were not saying that it could never rise to the level of a nuisance.

Birke v. Oakwood Worldwide [United States] [May 29, 2013]

Through her father, a child with asthma sued her apartment complex for exposure to secondhand smoke in outdoor common areas such as near the pool. A trial court found that the child did not prove her public nuisance claim because she failed to show that the outdoor secondhand smoke exposure was substantial or unreasonably harmful. The court of appeal agreed that the child’s public nuisance claim failed.

Ankur Gutkha v. India Asthma Care Society [India] [April 03, 2013]

The Court directed State Governments that have banned the sale and manufacture of gutka and pan masala containing tobacco to file compliance reports and State Governments that have not banned such sales to file affidavits stating why they have not implemented a ban.

Carson Place [Australia] [November 08, 2012]

The applicants lived above the respondents in an apartment complex. The respondents were heavy smokers. The applicants alleged that smoke from the respondents' unit drifted into their apartment causing them distress, in breach of s167 of the Body Corporate and Community Management Act which prevents an occupier using his or her lot (property) in a way that creates a nuisance or interference with another occupier.

The Adjudicator found that s167 would only be breached if the applicants could establish that the cigarette smoke was of such a volume or frequency that it would interfere unreasonably with the life of another lot owner of "ordinary sensitivity". Because the applicants tendered no evidence of the extent of smoke emanating from the respondents' lot, the Adjudicator dismissed the application.

Note: for a similar case, see Admiralty Towers [2012] QBCCMCmr 264 (23 June 2011).

Admiralty Towers [Australia] [June 23, 2011]

The applicant and respondents were neighbours in an apartment complex. The applicant alleged that cigarette smoke emanating from the respondents' apartment drifted into his apartment, that passive smoking was dangerous, and that he should not be subjected to inhaling toxic smoke in his own home. He alleged that the smoke constituted a nuisance in contravention of s167 of the Body Corporate and Community Management Act 1997.

The Adjudicator ruled that the applicant bore the onus of establishing that the smoke complained of was caused by the respondent, and that the smoke was of such a volume and frequency that it would interfere unreasonably with a resident of "ordinary sensitivity". Since the applicant provided no subjective or objective evidence of the quantity of smoke he was exposed to, his application was dismissed.

Note: for a similar case, see Carson Place [2012] QBCCMCmr 503 (8 November 2012).

Ewen v. MacCherone [United States] [May 26, 2011]

The owners of a New York City luxury condominium sued their neighbor for cigarette smoke drifting into their unit. The court of appeal disagreed with the lower court and dismissed the owners’ claims for nuisance and negligence. The appeals court found that there was no law or condominium rule that prevented the neighbor from smoking. Additionally, the court ruled that the neighbor’s smoking was not unreasonable enough to constitute a private nuisance and that the neighbor did not have a duty to refrain from smoking inside his apartment or from unintentionally allowing the secondhand smoke to seep into another unit.