Argument: Housing 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.

Boruski v. Crescent Housing Authority [Canada] [May 30, 2014]

Residents of subsidized housing for seniors and people with disabilities sued the nonprofit Housing Society that managed the housing for discrimination based on their physical disabilities. The residents claimed that the Housing Society failed to reasonably accommodate their disabilities by exposing them to secondhand smoke, which exacerbated their disabilities. The court dismissed the complaint, finding that that the Housing Society took reasonable steps to accommodate the residents and limit their exposure to secondhand smoke, including offering different units for relocation, adopting a smoking policy, changing the lease agreement for new tenants to prohibit smoking, maintaining and inspecting the ventilation system, and moving a “smoking pit” farther away from the building. The court said that the steps taking by the Housing Society were reasonable and that residents sought a “perfect and preferred” accommodation rather than a reasonable accommodation.

MacKay v. Metropolitan Toronto Condominium Corp. [Canada] [May 12, 2014]

The owners of a Toronto condominium unit complained to condominium management about cigar smoke drifting into their condo from an upstairs unit. The condominium corporation eventually hired a variety of engineers and consultants to correct the problem and the neighbor agreed to stop smoking. However, the condominium owners’ insurance company found the unit “uninhabitable” and paid for the owners to move to a hotel, where they had lived for 10 months at the time of the court decision. The court found that problem of drifting smoke had finally been resolved after numerous repairs and therefore the condominium corporation was not in violation of its obligations to repair or maintain the building’s common elements under Ontario law. The court ordered that costs be paid to the condominium owners.

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.

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.

Upper East Lease Associates, LLC v. Cannon [United States] [January 20, 2011]

Secondhand smoke was drifting into a tenant’s apartment from the downstairs unit. The landlord’s attempts to caulk and seal vents did not fix the problem. The tenant stopped paying her rent and moved out after the landlord refused to allow the tenant to move to a new unit. The landlord sued the tenant for violating her lease and the tenant responded with claims (1) that the landlord violated the warranty of habitability; (2) that she was constructively evicted from her unit because she was unable to use and enjoy the premises; and (3) that the landlord breached the covenant of quiet enjoyment. Leases in the apartment building specified that causing secondhand smoke to infiltrate other apartments may constitute a nuisance, a health hazard, and may infringe on the quiet enjoyment of other tenants. The court ruled in favor of the tenant, finding that the landlord failed to meet its obligations, which resulted in a constructive eviction of the tenant. The court ordered the landlord to reduce the tenant’s rent by a total of $2,852 based on a specific percentage each month.

Ewen v. MacCherone [United States] [December 01, 2009]

The owners of a New York City luxury condominium sued their neighbor for cigarette smoke drifting into their unit. The court found that the condominium rules are silent about smoking in residences but that the rules prohibit any objectionable odors or activity, which interfere with the “rights, comforts, or conveniences” of other owners. The court allowed the owners’ claims for negligence and nuisance to move forward. The court also found it was permissible for the owners to sue their neighbor without involving the condominium association in the lawsuit.

DeNardo v. Corneloup [United States] [July 13, 2007]

A tenant sued his neighbor and landlord for secondhand cigarette smoke drifting into his apartment. On appeal, the court rejected all of the tenant’s claims, ruling that (1) the landlord did not breach the covenant of quiet enjoyment because there was no evidence that the landlord substantially disturbed the tenant’s use of his land; (2) there was no battery because the smoke did not intentionally contact the tenant; (3) the trespass claims failed because the tenant did not prove that the landlord should be liable for tenant conduct it could not control; and (4) the nuisance claim failed because the tenant did not demonstrate that a tenant’s cigar smoking was an ultrahazardous activity. Finally, the court rejected the tenant’s claim for retaliatory eviction (i.e., that he was evicted because he filed a lawsuit) because the tenant was behind on his rent and could not prove that his failure to pay rent was excused.

Christiansen v. Heritage Hills #1 Condo. Ass’n [United States] [November 07, 2006]

A condominium association passed a ban on smoking inside the units. The ban was challenged by one of the condominium owners, who smoked, and her husband. The court upheld the condominium association’s amendment to the Covenants, Conditions and Restrictions (CC&Rs) to ban smoking. The court heard extensive testimony about complaints to the owner about smoking and attempts by other residents to fix the problem through methods such as adding insulation, sealing pipes and gaps, and installing HEPA air filters. The court found that the no-smoking amendment was properly passed by 75% of the owners as specified in the CC&Rs and that it was made in good faith. The court also found that the smell of cigarette smoke constituted a nuisance. The court said that the smoking ban did not violate public policy and compared the migration of smoke to extremely loud noise that cannot be contained. Finally, the court noted that there is no constitutional right to smoke.