We continue to examine the ever-increasing and novel ways in which our legal system makes it difficult to be a landlord. Today's example involves the issue of secondhand smoke and the possible duty of a landlord to prevent tenants and others from being harmed by its presence on the premises.

The case – Birke v. Oakwood Worldwide – was brought in Los Angeles County Superior Court. Melinda Birke, a minor, resided with her parents in an apartment complex – one of many – owned by Oakwood Worldwide. She is, or was at the time, asthmatic. The court record showed that, "Oakwood has had a longstanding policy prohibiting smoking in all indoor units and indoor common areas but permits smoking in the outdoor common areas to accommodate tenants and guests who smoke. Oakwood declined previous requests of [Melinda's] father John Birke to ban smoking in the outdoor common areas."

In June, 2006, Melinda Birke, by and through a guardian appointed for the legal proceeding, filed a complaint against Oakwood alleging a charge of public nuisance. Oakwood demurred – essentially asking for a dismissal – which the court granted, though allowing the complaint to be amended. A variety of allegations were made in the amended complaint. They included the following: (1) the condition also included a "private nuisance" because they were especially and particularly harmful to Melinda Birke; (2) "Oakwood's refusal to abate the nuisance was 'demonstrably malicious and oppressive, and in frank disregard of the right and safety of others, and warrant[ed] imposing against [Oakwood] punitive damages…".

The trial court again dismissed the complaint. Its decision was appealed to California's Second Appellate District Court of Appeal.

The appellate court particularly considered California's Civil Code with respect to public nuisance. There, Section 3479 provides, "Anything which is injurious to health…or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property…is a nuisance." Section 3480 stipulates, "A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal." Finally, Section 3493 states, "A private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise."

The appellate court's job was not to determine whether Oakwood was guilty of something, but whether, as a matter of law, the case ought to go to trial. On those grounds, the appellate court overturned the dismissal by the superior court. The appellate court noted that, "As the Birkes' landlord, Oakwood plainly has a duty to maintain its premises in a reasonably safe condition. The question is not one of duty [to prohibit smoking in the common areas], but of breach. That is, the issue presented … is whether…its failure to impose any type of limitation on smoking in common areas, including swimming pools and the children's playground that Melinda Birke has a right to use and enjoy, breached that duty."

There are at least two reasons for residential landlords to be concerned about this decision: (1) Even though there may be no local ordinance with respect to secondhand smoke and smoking in public spaces, a landlord may be sued for allowing it. (2) This case could easily be extended. Many residential landlords might think, "Well, this only affects large complexes where there are such facilities as swimming pools and children's playgrounds." But it is not much of a stretch to think that the occupants of the second floor of a triplex might want to sue over the smoke drifting up from the balcony of the first floor unit.

Landlords: Be careful out there.

Published: June 30, 2009

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Bob Hunt is a director of the National Association of Realtors and is author of the recently published book, "Real Estate the Ethical Way." A graduate of Princeton with a master's degree from UCLA in philosophy, Hunt has served as a U.S. Marine, Realtor association president in South Orange County, and director of the California Association of Realtors, and is an award-winning Realtor. Contact Bob at .