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In a rare case that illustrates the far reach of secondhand-smoke litigation, a Massachusetts state court has upheld the eviction of two condominium tenants because of cigarette use inside the home. Landlord Neil Harwood ordered Erin Carey and Ted Baar from a one-bedroom rental at Dockside Place Condominium in Boston following neighbors’ complaints of smoke seepage into other units in the building. The lease Carey signed did not include a nonsmoking clause, and Harwood had told her smoking would be permissible inside the unit she was to rent, according to court documents. But the Boston Housing Court jury ruled that possession would be granted to the landlord and the eviction would be upheld. Harwood Capital Corp. v. Carey, No. 05-SP00187. SIMILAR CASES Though unique in its details, the case is the latest in a growing line of secondhand-smoke litigation, said John F. Banzhaf III, executive director and chief counsel of the Washington-based Action on Smoking and Health, a nonprofit legal action group against smoking. In 1994, the Ohio Court of Appeals ruled that secondhand smoke that drifted into an apartment through the ventilation system from the unit below breached that tenant’s right to “quiet enjoyment” of one’s home. Dworkin v. Paley, No. 64834. In a similar 1998 case, also in Boston Housing Court, a nonsmoking tenant whose apartment was above a smoky bar withheld rent and was sued by her landlord. The court ruled in the tenant’s favor, citing the quiet enjoyment covenant. Gainsborough St. Realty Trust v. Haile, No. 98-02279. “Ten years ago, most people would assume that smoking in one’s own abode — their apartment or condo — would be protected and nothing could be done about it, like the ‘old man in his castle’ idea,” Banzhaf said. But that concept has been eroded by several cases, Banzhaf noted, including orders prohibiting parents from smoking around their children or foster children, and court rulings that secondhand smoke entering one’s home is actionable if it adversely affects others. In the face of an increasing number of nonsmoking tenants who are willing to assert their rights in multiple-unit dwellings, a growing number of property owners will choose to make their apartments and condos smoke-free, said Harwood’s attorney, Peter Brooks, a partner in the Boston office of Chicago’s Seyfarth Shaw. A new issue is the liability of landlords for allowing smoking in their building and the additional risks they face, Brooks said. “Those who want to avoid it will turn nonsmoking, not just in an eviction case, but a case against a landlord brought by a nonsmoking tenant.” COUNTERSUIT PLANNED Carey plans to countersue on several grounds, according to his attorney, James Rosencranz, a solo practitioner in Boston. “The jury never found that [Carey and Baar] were a nuisance,” he said. “The judge told the jury that if they found the odor of smoke was taken from this unit to another unit, you have to find for the landlord.” Rosencranz filed a motion for a new trial. Brooks, the attorney for Harwood, moved for a preliminary injunction at the end of the case to ban Carey and Baar from smoking in the unit until they leave. The court denied the preliminary injunction and Brooks now seeks a permanent injunction. Though the condo association’s resident handbook does not address smoking inside units, the bylaws state “[n]o unit owner shall cause or permit to exist in his unit � any offensive noise, odor or fume or any hazard to health.” Unit owners who violate this provision may face a $75 fine. Harwood evicted Carey and Baar after he faced $75-a-day fines from the condominium association for the smoke odor. He will only seek to collect the fines from Carey if she pursues further litigation, Brooks said.

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