Q: I unknowingly moved into an apartment next to a smoker. The smoke permeates into my apartment and has increasingly posed serious health issues for me (respiratory issues, coughing and burning sensation of the eyes and throat). In the summer, the smoke drifts into my apartment, and in the winter it permeates through pipes, cracks and vents. It prevents peaceful enjoyment of my apartment. I obtained a letter from my physician in January documenting how the smoke is adversely affecting my health.
I have done some research and, apparently, there are no known effective ventilation or air-cleaning systems that eliminate the toxins and smells that infiltrate apartment outlets, vents and pipes. Sealing outlets, cracks, electrical outlets, pipes and other places where smoke seeps through does not eliminate smoke traveling from unit to unit. What should I do?
A: This is a complex area of law but one that is developing. Many judges do not believe secondhand smoke is a potential danger and have dismissed cases unless the plaintiff could demonstrate a real health threat.
It does not appear you have talked to the smoker or the landlord. That is what I would do first. Hopefully, you can persuade the smoker to at least smoke outside of his apartment. But should you decide to go to court, the judge will want to know that you “exhausted all options before you filed suit.
You should review the federal Fair Housing Act, which is administered by the Department of Housing and Urban Development. According to a report from the San Antonio HUD office, “All apartment communities, regardless of government funding or not, required to abide by the Fair Housing Act but under the law if someone has a breathing problem, and a statement from their doctor, management is required to move the person who smokes to another unit in order to accommodate the person with this disability.”
Accordingly, you should confront your landlord and tell him that he has to comply with the Fair Housing Act requirements.
There has been a recent development in the District of Columbia. A superior court judge issued an injunction against a next-door town house neighbor, telling him he cannot smoke in or around his house — and smoking included cigarettes, cigars and even marijuana. The plaintiffs lived next door and had two young children. They presented proof that their health was affected, and that they could not use their basement because of the smoke.
The plaintiffs even offered to pay the cost to correct the problem — it appears there was a hole between the two properties — but the defendant smoker refused. This case is only in its infancy and has a long way to go. But it is instructive; smoking is not only harmful to health but, according to the judge, is also a private nuisance.
Q: I asked my community management company for a copy of the bank statements, as our fees have gone way up, and I wanted to make sure no money is being stolen. I was told they can’t send them because they have several community funds in one account. This seemed inappropriate, and when I Googled it, I came across your recommendations online, which confirmed my suspicions. Is this illegal or just not good management?
A: It is not illegal. But it violates generally accepted accounting principles and may actually be a violation of the management company’s contract with your association.
Each association must have a separate bank account. Otherwise, how can you determine how much is in your association’s account and whether funds are being stolen.
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You should immediately tell this to the president and the treasurer of your association. Explain that they may be breaching their fiduciary duty by allowing such commingling and that it must be corrected immediately, even if they have to find a new management company.
In my career as an attorney representing many associations, I have encountered four situations where funds were embezzled by a property manager. In one situation, the manager was sending bank statements to my condo client. The latest one showed that the client had $80,000 in the reserve account. The manager used photo editing software to doctor up the statement so that it looked real; in fact, the association only had $2,500 in the account. The property manager, a horse racing gambler, is now serving a 15-year jail sentence.
In that case, there was no commingling. But we all learned a valuable lesson. The treasurer of the association should get the periodic bank statements directly from the bank, even if it costs a few extra dollars. And, equally important , the treasurer must understand he or she has a fiduciary duty to all of the owners, and must carefully review the statement immediately after it is received. And management should provide proof that the statement was also reconciled.
Finally, at the end of each year, the books should be turned over to an independent certified accountant. In your case, if the accountant saw the commingled accounts, she would have “red-flagged” it. Ask the board to provide you with a copy of the most recent accounting.
Benny L. Kass is a practicing attorney in Washington and Maryland. No legal relationship is created by this column; [email protected].