Erin Carey and Ted Baar blamed the spreading odor from their cigarettes on what they said was a faulty ventilation system. (Globe Staff Photo / David L. Ryan)
Jury finds heavy smoking to be grounds for eviction
Verdict is said to be one of first in nation
By Ralph Ranalli and Jonathan Saltzman, Globe Staff | June 16, 2005
In a case that tobacco law specialists say is one of the first of its kind in the nation, a Boston Housing Court jury ruled that a South Boston couple could be evicted from their rented water-view loft for heavy smoking, even though smoking was allowed in their lease.
Carey and Baar, who each smoke about a pack a day and run an information technology sales business out of the one-bedroom unit, fought the eviction, arguing in court that the converted warehouse's shoddy construction and aging ventilation system were to blame for the wayward odors.
Last Friday, a jury ruled in favor of the landlord and the eviction. Even though the landlord could have written a nonsmoking clause into the lease and didn't, the jury found that the couple's heavy smoking violated a more general clause banning ''any nuisance; any offensive noise, odor or fumes; or any hazard to health."
Although the verdict is not binding on other courts, tobacco law specialists said the decision is one of the nation's first to declare smoking a nuisance serious enough to become grounds for eviction.
''It is very important, because it is a sign that people are more aware of how dangerous second-hand smoke is," said Professor Richard Daynard, chairman of Northeastern University's Tobacco Products Liability Project, which tracks second-hand smoke litigation nationally.
''I believe this decision could accelerate the willingness of courts to decide that, if you are creating smoke that is seeping into other people's units, you are doing something that has to stop," Daynard said.
He said the verdict could be cited in other Boston tenant-landlord disputes.
Carey and Baar are now planning to move out of state, but say they will countersue landlord Neil Harwood, who told them before they moved in that he had lived and smoked in that unit for years without a problem. The couple say that moving their belongings and all the computer equipment associated with their business twice in a little more than a year -- they moved into the 33 Sleeper St. building last summer -- will cost them more than $30,000.
Inside the fifth-floor unit yesterday, the odor of smoke seemed to a reporter to be strong, but not oppressive, and the only visible sign of tobacco use was a large, immaculately clean glass ashtray on their kitchen table. Carey, 41, said she goes through slightly less than a pack of Marlboro Lights a day, while Baar, 55, said he smokes about one pack of Parliaments.
Walking around the unit with their lawyer looking on, Carey pointed out what the couple said were numerous structural problems, including a ventilation unit patched together with duct tape, holes and gaps in the exposed brick walls, and a closet ceiling where the planks of the subfloor of the unit above were clearly visible.