Abstract
Secondhand smoke is becoming a nuisance to many in our society. This is an ever-growing problem with residents that live in multi-unit dwellings as smoking occurs in common areas and is transmitted through to adjacent living spaces. In the case that follows, you will see how this issue is resolved between a landlord and tenant. The concepts of warranty of habitability and constructive eviction are discussed in detail. Specifically, secondhand smoke sets the stage for the next precedent for a breach of the warranty of habitability.
Parties
The parties involved in this case are the plaintiff, Peter Poyck, and the defendants, Stanley and Michelle Bryant. Peter Poyck owns condominium unit No. 5-D, which is located at 22 West 15th Street in New York City. He leased this condominium to his tenants, the Bryants. Stan and Michelle enjoyed their tenancy there for three years from 1998 to December 31, 2000. They decided that they would renew their lease another 2 years from January 1, 2001 to December 31, 2002. The Bryants agreed to pay $2, 597 per month in rent. Michelle was recovering from a second cancer surgery two months into their second tenancy. She also suffers from an allergy to smoke (Peter Poyck, Plaintiff, v Stan Bryant et al., Defendants, 2012).
Facts
Stan and Michelle leased their condominium from Peter Poyck. They lived there for 3 years and then decided to lease it for another 2 years. Two months after the beginning of their lease renewal, new neighbors moved into condominium 5-C, which was right next door to the Bryant’s condominium. The neighbors in 5-C were smokers and smoked in their apartment and in the common hallway. The Bryants spoke with the building superintendent about the smoking problem and he claimed that he spoke with the tenants in 5-C. The smoking did not cease. On June 29, 2001, Mr. Bryant sent a letter to the superintendent, Mr. Poyck, and Mr. Poyck’s attorney informing them that they can either remedy the hazardous condition or they, the Bryants, will be forced to move out of the condominium. In that letter, he also informed them about his wife’s medical condition. The landlord did nothing to try to alleviate the smoke problem. On August 1, 2001, the Bryants sent another letter to the landlord indicating that they had decided to vacate the premises by the end of August. They did indeed vacate by the stated date.
Procedure
Peter Poyck decided that he would sue the Bryants for the remainder of the rent for the year of 2001 and any associated late fees. The Bryants responded with a written defense “denying the allegations of the complaint and asserting their third and fourth affirmative defenses and first and second counterclaims for breach of warranty of habitability and constructive eviction due to secondhand smoke” (Peter Poyck, Plaintiff, v Stan Bryant et al., Defendants, 2012). Around June 2005, Poyck asked the court to strike or dismiss the defendants third and fourth affirmative defenses and first and second counterclaims. On October 14, 2005, the court denied his motion but it was because he did not submit all of the required paperwork to the court. The court wanted to know if he owned condominium 5-D, 5-C, and/or the entire building. They wanted to know who owned condominium 5-C, who oversaw the common space in the building and whether there were any building rules that stipulated if smoking was allowed at all or where it was allowed. The paperwork that Poyck failed to submit to the court would have answered all of these questions. Around, March 2006, the plaintiff submitted his documentation to the court and again asked the court to strike or dismiss the defendants’ defenses and counterclaims. The defendants opposed the motion but the court decided to hear the case in August 2006. The court ruled in favor of the defendants. Not only was the motion against them denied, but the court ruled that they were justified in vacating condominium 5-D due to the implied warranty of habitability causing a constructive eviction.
Issue
The issue at hand here is whether secondhand smoke is a breach of the implied warranty of habitability and is a reason to cause a constructive eviction. We must first define what is meant by the “implied warranty of habitability” and “constructive eviction.” The warranty of habitability states that “leased premises must be fit, safe, and suitable for ordinary residential use” (Cheeseman, 2009, p.774). When there is a lease, the landlord and the tenant have to perform specific duties. “Caveat lessee” no longer applies and it is the landlord’s duty to make sure that the premises are habitable. Therefore, a constructive eviction is one that occurs when “residential rental property is in an uninhabitable condition. The uninhabitable condition makes the property unsuitable to live in, forcing the tenant to leave the property.”
Although the problem with secondhand smoke was not specifically listed as an item that causes a breach of this warranty, the warranty of habitability was seen as more of an objective standard. There are many more nuisances besides the obvious toxic odors, excessive noise, lack of heat, etc. that create a problem for a tenant.
Secondhand smoke is a subject that has been widely researched. There is significant research to indicate that secondhand smoking has adverse effects on a person’s health. There are reportedly about 50,000 American deaths that are attributed to secondhand smoke (“Secondhand smoke and the brain,” 2011). Of those, about 46,000 of those deaths are caused by heart disease and the other 4,000 are caused by lung cancer (Johnson, 2011). The Harvard Heart Letter indicates that there is “no safe level of smoke exposure” (2012). Whether you smoke directly or inhale the smoke of another, it is still bad even for a completely healthy person.
From this case, we know that Mrs. Bryant is allergic to smoke. If a person that is allergic to smoke becomes exposed to it, he/she may suffer such reactions as burning or watery eyes, nasal congestion, coughing, hoarseness or shortness of breath evidenced by a wheeze (“Cigarette smoke allergy,” 2012). We also know that Mrs. Bryant is recovering from a cancer surgery. The case does not state the type of cancer but that is irrelevant. Having firsthand knowledge because my father is battling cancer, a person recovering from this sort of surgery cannot be exposed to any sort of irritants. Smoke is absolutely an irritant containing over “50 known cancer-causing chemicals” (Kreisman, 2011).
There is now a move to make multi-unit dwellings smoke-free. Mayor Bloomberg in New York City, where this case occurred, is trying to make tenants better informed of their housing choices. Due to the amount of 311 calls that are received for secondhand smoke complaints, he believes that if there is secondhand smoke in a building, residents should be informed prior to moving in (“Smoke-Free Residences,” 2012) There is some evidence to suggest that people with higher incomes are the ones that mostly benefit from smoking policies in multi-unit dwellings. (Jackson, Bonnie, 2011).
Although this case specifically discusses secondhand there is also the issue of thirdhand smoke, which is defined as “resulting from residual tobacco smoke pollutants that adhere to the clothing and hair of smokers and to surfaces, furnishings, and dust in indoor environments. These pollutants persist long after the clearing of secondhand smoke” (Protano, Vitali, 2011) The gases from the thirdhand smoke releases contaminants into the air that are carcinogenic and hazardous to your health (Protano, Vitali, 2011). Based on all of this evidence, the Bryants had every right to vacate their condominium.
Holding
The court ruled in favor of the defendants by dismissing Poyck’s motion to strike or dismiss the defenses and counterclaims of the Bryants. In addition, the court ruled that secondhand smoke does constitute a breach of the implied warranty of habitability and caused a constructive eviction to occur.
Reasoning The implied warranty of habitability is only applied in a landlord-tenant relationship. That would exempt the board of managers from this lawsuit even though the superintendent, apparently, made an effort to speak to the residents of 5-C. Although the plaintiff stated that he could not control what the neighbors in 5-C did, the court stated that this is incorrect. A landlord is responsible to his tenants for the actions of a third party. This precedent had been set by several other court cases. If a neighbor does something to intrude on a tenant’s peaceful living, it is the responsibility of the landlord to rectify the situation. Regardless of whether he was responsible for the actions of the residents in 5-C, he still did nothing to alleviate the problem. He could show the court no proof that he did anything. Even after being given notice of Mrs. Bryant health condition, he still did nothing.
Case Questions
As stated above, the warranty of habitability means that “leased premises must be fit, safe, and suitable for ordinary residential use” (Cheeseman, 2009, p.774). When the premises are not habitable, the tenants are forced to move out of the premises due to constructive eviction. In this case, secondhand smoke was deemed to be a condition that was covered under the warranty of habitability and, therefore, the Bryants had every right to find a healthier place to live.
The neighbors in condominium 5-C did breach a duty owed to a neighbor if they were aware of the situation. The superintendent claims that he spoke to them; however, the smoking did not cease. We really do not know if he spoke to them. He may have just said that and, in actuality, he never even mentioned it to them. I have actually had a superintendent that did not like to deal with conflict, who would rather see a problem continue than look like the bad guy. If the superintendent had notified them as to the problem, they should have, as good neighbors, taken Mrs. Bryant’s situation into account. She was recovering from cancer and had a severe allergy to smoke. They definitely could have discontinued the smoking in the common hallways. They could have done all of their smoking outside before even entering the building. This would have made the situation much more bearable and maybe the Bryants would not have to move out at all. The Bryants were very justified in moving out of 5-D. Just taking the health condition of Mrs. Bryant into account gives enough justification to move out. With the known side effects of secondhand smoke and Mrs. Bryant’s allergy, they had more than enough justification to vacate the premises. The landlord in this case stated that he had no control over what his neighbors did in 5-C but he did not try to alleviate the problem at all. At a minimum, he could have gone to speak to the neighbors in 5-C. This may not have helped but at least he could say that he tried. He also could have talked to the owner or board of managers of the building to discontinue the smoking in the common areas. In addition, “Real Property Law § 339-v (1) (i) mandates that condominium bylaws restrict the use and maintenance of both the units and common elements such as the hallways and elevators so [***14] as to "prevent unreasonable interference with the use of respective units and of the common elements by the several unit owners” (Peter Poyck, Plaintiff, v Stan Bryant et al., Defendants. (2012). This means that he could have sought the help of the board of managers to make sure that the smoking was stopped in the common areas. If the residents in 5-C, chose to ignore the bylaws, then a court action could have been brought up against them by either Poyck or the board of managers. In addition, Poyck could have taken some measures to ventilate his condominium. It may have been difficult to prevent all of the smoke from escaping into 5-D, but a little effort would have been nice. There is actually evidence to show that doing modifications to eliminate the transmission of smoke through to another apartment is not a very good alternative because the smoke transmission cannot be completely eliminated. (Kreisman, 2011) At least, he could say that he tried to accommodate the Bryants; instead, he chose to do nothing at all.
Conclusion
In conclusion, this was a case of whether secondhand smoke could breach an implied warranty of habitability and cause a constructive eviction. After the tenants complained about the smoking from the next door neighbors, the landlord did nothing to try to alleviate the problem. The landlord then sued his tenants for vacating their apartment before the end of their lease and the tenants filed defenses and counterclaims to his complaint. He felt that he was not responsible for the actions of the neighbors, but the court ruled otherwise. He is responsible for the third-party interference. The court ruled that the tenants were completely justified in vacating their apartment early. The tenants did what they were supposed to do. They spoke with the superintendent, wrote a follow-up letter and then wrote another letter giving a 30-day notice of intent to vacate. I have one main recommendation to the court’s ruling. First, when tenants complain, a landlord needs to act, even when they feel that there is nothing that they can do. A landlord should at least show an attempt to accommodate. The warranty of habitability is just a standard. Another third party’s act could either already fall under the warranty or could set the next precedent. If the landlord had done what he was supposed to do, this case probably wouldn’t have made it to court. This landlord’s failure to act lost his case.
BIBLIOGRAPHY
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