Comments on: Smoking and Medical Oxygen: What’s a Landlord to Do? http://www.rosenlawoffice.com/smoking-and-medical-oxygen-whats-a-landlord-to-do/ Just another WordPress weblog Sun, 28 Aug 2011 23:26:39 +0000 hourly 1 http://wordpress.org/?v=3.3.1 By: joelrosen http://www.rosenlawoffice.com/smoking-and-medical-oxygen-whats-a-landlord-to-do/comment-page-1/#comment-372 joelrosen Sun, 28 Aug 2011 23:26:39 +0000 http://rosenlawoffice.com/?p=281#comment-372 A person is entitled to use his apartment as he likes, but he is not entitled to create a nuisance. That is, he cannot unreasonably interfere with your mother's enjoyment of her property. It's up to a judge to decide whether his conduct is reasonable and whether the interference with your mom's rights is substantial. But as a matter of common sense, I can't see how it would hurt him to close the window nearest to your mother's apartment when he is smoking. Why don't you start by talking to the landlord? A person is entitled to use his apartment as he likes, but he is not entitled to create a nuisance. That is, he cannot unreasonably interfere with your mother’s enjoyment of her property.

It’s up to a judge to decide whether his conduct is reasonable and whether the interference with your mom’s rights is substantial. But as a matter of common sense, I can’t see how it would hurt him to close the window nearest to your mother’s apartment when he is smoking.

Why don’t you start by talking to the landlord?

]]> By: Lisa bonfiglio http://www.rosenlawoffice.com/smoking-and-medical-oxygen-whats-a-landlord-to-do/comment-page-1/#comment-364 Lisa bonfiglio Wed, 27 Jul 2011 16:16:19 +0000 http://rosenlawoffice.com/?p=281#comment-364 I am in Colorado helping my mom who has lung cancer and brain cancer and asthmaas well as other things she is on oxygen she lives in an apartment her neighbors window is 2 feet from her front door and he sits there and smokes I asked him could he please shut his window while he smokes he said NO I couldn't believe it I asked him do you know my mother is really really sick and can't breath and the smoke is really hard on her he said he didn't care it's his apartment I am still in shock what can I do?? I am in Colorado helping my mom who has lung cancer and brain cancer and asthmaas well as other things she is on oxygen she lives in an apartment her neighbors window is 2 feet from her front door and he sits there and smokes I asked him could he please shut his window while he smokes he said NO I couldn’t believe it I asked him do you know my mother is really really sick and can’t breath and the smoke is really hard on her he said he didn’t care it’s his apartment I am still in shock what can I do??

]]> By: John Moore http://www.rosenlawoffice.com/smoking-and-medical-oxygen-whats-a-landlord-to-do/comment-page-1/#comment-54 John Moore Tue, 04 May 2010 16:49:32 +0000 http://rosenlawoffice.com/?p=281#comment-54 It's no violation of a person's fundamental rights to prevent them from creating a nuisance. Although both smoking and using supplemental oxygen are legal by themselves, combining them creates a hazard. Many lease contracts already include provisions preventing dangerous activities, true? I don't know that a change in lease would be necessary then, but instead an invocation of the contract as written. Regarding the discrimination claim, it seems to me that a landlord could effect a rule preventing smoking in an apartment where supplemental oxygen is present with no real trouble, so long as it's a policy of general applicability: no person can smoke in an apartment where supplemental oxygen is used. Since it applies to all persons, not only handicapped persons, there would be no discrimination based on handicap. As long as the rule has a rational basis (safety and fire prevention) there should be no problem. (I know, I'm applying the rationality test to private parties here.) As for the economic consequences of possibly losing a tenant: landlords lose tenants periodically for any number of reasons. Who's to say that the LL wouldn't lose one of the neighboring tenants for failing to enforce a safety concern? It’s no violation of a person’s fundamental rights to prevent them from creating a nuisance. Although both smoking and using supplemental oxygen are legal by themselves, combining them creates a hazard. Many lease contracts already include provisions preventing dangerous activities, true? I don’t know that a change in lease would be necessary then, but instead an invocation of the contract as written.

Regarding the discrimination claim, it seems to me that a landlord could effect a rule preventing smoking in an apartment where supplemental oxygen is present with no real trouble, so long as it’s a policy of general applicability: no person can smoke in an apartment where supplemental oxygen is used. Since it applies to all persons, not only handicapped persons, there would be no discrimination based on handicap. As long as the rule has a rational basis (safety and fire prevention) there should be no problem. (I know, I’m applying the rationality test to private parties here.)

As for the economic consequences of possibly losing a tenant: landlords lose tenants periodically for any number of reasons. Who’s to say that the LL wouldn’t lose one of the neighboring tenants for failing to enforce a safety concern?

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