Ask The Lawyer By: Daniel A. Gwinn, Esq. – Tenant Gets The Boot?

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QUESTION: My husband and I moved into a non-smoking apartment building four years ago. It wasn’t just because we don’t like the smell of cigarette smoke, we have to live in a smoke-free building: My husband has severe asthma, which can be exacerbated by even moderate exposure to smoke and fumes. Several months ago, some new people moved in downstairs. They smoke, and the smoke travels up through the heating duct and into our apartment. Since then, my husband has had increasing difficulty breathing, suffers from coughing fits that keep him up at night, and has had to rely more and more on use of an inhaler and a breathing machine just to function. We complained to the landlord immediately. He did nothing about it. We complained to the new neighbors, pointing out that this is supposed to be a smoke-free building. They said they were never informed of that, but would try to open the windows a bit. We complained again to the landlord, and threatened to withhold rent if the issue was not addressed in some way. The result of our complaint was a 60-day eviction notice. Don’t we have a right to have the landlord enforce the rules?

ANSWER:     You certainly should! Your landlord appears to have violated your lease and your rights under state and federal laws that protect people living with disabilities from discrimination in housing.

Under the Fair Housing Act, it is it illegal to discriminate against any person “in the provision of services or facilities in connection with [rental of a dwelling], because of a handicap.” Your husband’s severe asthma should be viewed as a handicap. Discrimination under the FHA incudes a refusal “to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a person living with a disability] equal opportunity to use and enjoy a dwelling.”

Under the facts you describe, the non-smoking rule enabled your husband to have an “equal opportunity to use and enjoy” your apartment. Any policy changing the non-smoking rule denies him his rights under the FHA and, if it violates the terms of your lease agreement, is a breach of contract. If the landlord has completely changed the policy, he may have violated the rights of all tenants in the building, no matter what their disability status, if they signed a lease believing the building was smoke free.

Under the FHA, where a policy may deny a tenant with a disability “use and enjoyment” of the premises, the landlord has a duty to engage in an interactive process to see if the tenant’s needs can be reasonably accommodated without causing undue hardship to the landlord. Since the building was smoke-free, if the landlord wants to change or relax that policy, he should work with your husband – and any other tenants who relied on the assurance that the building would be smoke free when they signed a lease – to see if the policy can be altered without denying your husband and others like him the use and enjoyment of the building. If the policy was relaxed only for these particular smokers, perhaps the landlord could offer the smokers an apartment in a different building, or far enough away from you and your husband so the smoking would not be an issue; or perhaps there is a filter of some kind that could be used to ensure the smoke does not get into your apartment?

The situation would be different if the building had not been designated smoke-free. Then, an insistence that the landlord change the policy – affecting the rights of smokers in the building — could be viewed as placing an undue hardship on the landlord.

Assuming there are no other issues, your landlord may be violating the FHA and contract law by threatening to evict you and your husband for asserting his rights under the FHA. The Sixth Circuit Court has held that “it is unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed his or her rights under the [FHA].”

You may wish to consult an attorney to help you assert your rights or file a lawsuit on your behalf.

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By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
900 Wilshire Drive, Suite 104
Troy, MI 48084
(248) 970-0310
(248) 970-0311 facsimile
[email protected]