28 November 2007
A: Toxic tort extortion, or litigation rather, is a relative newcomer to rental housing. The current wave follows the earlier asbestos, lead based paint and mold hysteria. It primarily deals with the alleged failure to warn of the presence of a toxic substance (cigarette smoke) in the environment in and around a multi family dwelling. If your building has common HVAC ducts that recirculate air between units and common areas, you may be a target. Many landlords already prohibit smoking by tenants and guests on the premises. Smokers are not a protected class as defined by state and federal civil rights and fair housing statutes. However if you disqualify any particular class of individuals based upon a characteristic or conduct, then you run the risk of a claim of “arbitrary discrimination.” Rather than deny housing to “all smokers”, a more prudent practice would be to establish rules and regulations that prohibit smoking on or about the premises, including balconies and common areas. By doing so, you are not arbitrarily discriminating against a class of individuals, but are rather establishing reasonable rules regarding conduct on the premises based upon economic and objective business reasons. Contact you local apartment association for signage that may effectively reduce or eliminate the threat of a lawsuit.