Local Law Blogs

Condominiums and Second Hand Smoke Claims

By Mark M. Wiechnik

Several lawsuits are pending across the United States related to second hand smoke claims in a condominium setting.  One of the first was recently decided in Massachusetts.  In Burrage v. DeAngelo, et al., a condominium unit owner sued her neighbor, the condominium association and her real estate agent for causing or allowing a hazardous or noxious activity, namely smoking in an adjacent unit.  All but the agent settled with her before trial.  At trial, the Plaintiff claimed that her real estate agent knew that her neighbor was a smoker, but failed to disclose that to her before closing.  The second hand smoke allegedly exacerbated her asthma, causing her significant personal injuries.  The jury found in favor of the agent in less than an hour, and awarded the Plaintiff nothing.  Obviously, real estate brokers and agents must disclose known hazards such as toxic waste sites, flood or fire danger or local industry that may be considered dangerous.  The question here was whether the agent should have disclosed smoking as a hazard, given that the Plaintiff could have easily determined during any of the visits to the home that either the prior owners or a neighbor was a smoker.  In fact, the Plaintiff specifically asked the realtor about the smoke smell during one of the visits.  The jury here chose not to add another layer of disclosure to already burdened Realtors, and instead charged the Plaintiff with discovering this "hazard" on her own.  It is unknown at this time if the Plaintiff plans on appealing the decision.
 

However, this hardly settles the issue of whether condominium associations in New Jersey can be held liable for unit owners participation in a legal activity in the privacy of their own home.  In the absence of a ban on smoking altogether, a condo association has a duty to protect the safety and welfare of its unit owners and to act in best interests of those owners.  It is an open question if that power extends to prohibiting lawful activities that take place within the four walls of a unit.  The Association may only have to provide alternative dispute resolution to the two owners in order to comply with the New Jersey Condominium Act and the Planned Real Estate Development Full Disclosure Act (PREDFDA), but no New Jersey court has decided this issue as of the date of this article.

Full post as published by New Jersey Law Blog on April 16, 2010 (boomark / email).