Jury finds heavy smoking to be grounds for eviction

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.

The landlord who rented the Sleeper Street unit to Erin Carey and Ted Baar ordered them out within a week last November, after neighbors complained of the smoke odors filtering into their apartments.

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.

''The condo board doesn't want to spend the money to replace a dying HVAC system," said Carey, who said she grew up in New Hampshire. ''It's more convenient to get rid of us. . . . We are second-class citizens because we're renters."

Carey and Baar said the trouble began a few months after they moved in, when an upstairs neighbor who was also a member of the condo association board knocked on their door and complained about the odor of smoke. The couple say they used humidifiers and an air purifier, but that the complaints continued,

John Forcier, another member of the Dockside Place Condominium Trust board who is acting as its spokesman, said that the smell of smoke wafting into the other units was overwhelming and that one neighbor feared for the health of her 4-month-old baby.

Forcier said in an interview that the couple's heavy smoking, not the construction of the building, was the problem. At least a half-dozen other residents of the building are known smokers, he said, but the only complaints the board ever received were about Carey and Baar.

''You could walk in the hallway and smell it," said Forcier, who said his unit isn't affected. ''One time, after spending about an hour in the unit upstairs from them, I went home smelling like I had been in a bar."

After the complaints to the board, Carey said she tried to get Harwood to pay some of their moving expenses if they agreed to leave, but said the landlord refused and also said he would not fix the structural problems with the apartment. By November, Harwood, who was being fined $75 a day by the condo association for the smoke problem, served them with an eviction notice.

Harwood's lawyer, Peter S. Brooks, said yesterday that the jury correctly found that, under the state sanitary code, landlords are not required to ''prevent odors from escaping an apartment" and that it was the couple's responsibility to moderate their smoking.

In another Massachusetts case several years ago, a superior court judge found that a tenant could not be evicted for smoking three to six cigarettes per day, Brooks said, but Carey and Baar's cigarette use was so constant and so heavy that it rose to the same nuisance level as loud parties or excessive noise and created an unhealthful condition for other tenants.

Brooks said he hopes last week's decision will become a useful tool for protecting the health of other tenants.

Ralph Ranalli can be reached at rranalli@globe.com.