“Constructive eviction” is a legal term which means that you have been evicted, but not by a court of law. Rather, the conditions in your apartment or rented condo have become so intolerable, or unhealthy, that you have no choice except to move.

Constructive eviction can occur when exposure to your neighbor’s tobacco smoke results in difficulty breathing, headaches, burning eyes and exacerbation of chronic medical conditions. Santa Monica law does not protect you from this problem.

California law (CA Civil Code Section 1941) requires that landlords provide a habitable space, and that they protect tenants from “foreseeable harm.” Because the California Air Resources Board has identified tobacco smoke as a Toxic Air Contaminant, with no safe level of exposure, it would seem that landlords have the responsibility to protect tenants from secondhand tobacco smoke since it causes illness and even death.

However, Santa Monica’s rent control law does not allow a landlord to “change conditions of tenancy” once a tenant moves in. Most landlords believe that they cannot take action to protect a tenant from another tenant’s tobacco smoke if the “smoking” tenant’s original rental agreement didn’t mention tobacco use.

One might think that a reasonable person who smokes would be concerned about whether his/her smoke is affecting neighbors. But at the Dec. 3 meeting of the Santa Monica Rent Control Board, one resident stated she is staying with friends because tobacco smoke is entering her unit from new neighbors in the unit below hers. Another resident held up pictures of her two small children and explained how smoke from the downstairs neighbor, who smokes on the patio, was infiltrating her unit, even when her windows are closed. (One of the children has asthma and frequently is rushed to the emergency room because she cannot breathe.) The landlord says his hands are tied so her only remedy is to move. Constructive eviction anyone?

Recently, scientists have identified the problem of “third-hand smoke.” That is when tobacco smoke enters a unit and sticks to surfaces — walls, furniture and rugs — and then outgases back into the room. These dangerous chemicals can be a constant presence.

We believe tobacco smoke in the home environment is a nuisance in the same way an infestation of rats or insects would be considered a nuisance.

Under California Law, Civil Code Section 3479, the term “nuisance” includes anything which [A] “is injurious to health,” or [B] “is offensive to the senses,” or [C] “interfere(s) with the comfortable enjoyment of life or property.”

And, a landlord can evict instead of “maintaining, committing, or permitting” a nuisance on the premises (Code of Civil Procedure, section 1161.4).

The mission of the Rent Control Board is protection of tenancy. But if residents in a city with rent control are suffering constructive eviction because of involuntary exposure to tobacco smoke, shouldn’t that be within a board’s responsibility to take action?

The Santa Monica City Council passed an ordinance a year ago which bans smoking in common areas of apartments and condominiums, but the ordinance leaves the enforcement to tenants who are affected. Landlords are forbidden to evict under this ordinance.

A member of the Rent Control Board is now suggesting that all apartment units, including their balconies and patios be required to be non-smoking. If the burden of enforcement for this new law falls again to tenants, and landlords are not permitted to evict, what would be the harm to the rent control ordinance? An updated ordinance could also declare that involuntary exposure to tobacco smoke is a nuisance, but absolve the landlord of enforcement responsibility. Currently in Santa Monica, a tenant seeks enforcement by filing a claim in Small Claims Court against the person who is smoking, but the definition of nuisance might increase a tenant’s right to a cause of action.

Would this new ordinance affect large numbers of the city’s apartment and condominium residents? Hardly, since in California, the number of adults who smoke is less than 14 percent and declining. We believe most tobacco-users are considerate and would change where they smoke if the life of a child or another adult was being threatened. But for those few who continue to threaten the health of their neighbors, there needs to be a remedy. An ordinance that defines involuntary exposure to tobacco smoke as a nuisance would give residents a fighting chance to avoid constructive eviction.

We are asking the community to support an improved ordinance in Santa Monica that at least requires no smoking on balconies and patios, and states that involuntary exposure to tobacco smoke in apartments and condominiums is a nuisance. We hope that the Rent Control Board will not oppose when this issue is brought again to the City Council.

Esther Schiller is the executive director of S.A.F.E., Smokefree Air for Everyone. S.A.F.E. is working in conjunction with Santa Monicans for Non-Smoking Renters Rights to ban smoking within apartments and condos.

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