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Secondhand-smoke suit catches lawmaker’s eye

In the past, the cooperative association at Greenbelt Homes has taken action against residents for noise complaints, barking dogs and hoarding.

The association drew the line, though, when David S. Schuman wanted to confine his next-door neighbor’s smoking to a common area near his home.

“I don’t think cooperative living means one has to live with a health hazard that was created after I moved in by a neighbor,” Schuman said. “I would be just as upset if the neighbors were playing loud music every night at midnight.”

After the neighbor and association offered solutions Schuman found insufficient, he filed suit in Prince George’s County Circuit Court for $600,000, half of it for punitive damages. He lost this month after Judge Albert W. Northrop decided the issue would be best handled by the legislature.

The matter has caught the attention of at least one legislator. Del. Benjamin Kramer, D-Montgomery, is drafting legislation that would address secondhand smoke in multi-unit dwellings.

The legislation would not be to prevent smoking in private homes, but to add secondhand smoke to the definition of nuisance in Maryland’s General Health Article.

“If someone smokes within the privacy of their residence, that’s their business,” he said. “However, when it begins to impact the health and enjoyment of another property owner, then it becomes problematic.”

Outside only

It has certainly become problematic to Schuman, who suffers from headaches, loses sleep and has to close his windows when his neighbor, Darko Popovic, smokes outside.

In his Nov. 3 ruling, the judge left in place an earlier agreement under which Popovic agreed not to smoke inside his unit. But that arrangement does not feel like a victory or even a concession to Schuman, who said Popovic stopped smoking indoors last year after his wife quit because of a medical condition. (Neither Darko nor Svetlana Popovic would comment for this story.)

Otherwise, the court ruled in favor of the Popovics as well as the association, Greenbelt Homes Inc., finding that it had not breached the implied covenant of quiet enjoyment.

Jason Fischer, an attorney for Greenbelt Homes, said if the ruling had been in favor of Schuman, it could have “created some havoc.”

“I think it would have implications far beyond this case that the court would rule that any level of secondhand smoke would qualify as a nuisance,” he said.

Fischer, an attorney with Bethesda-based Lerch, Early & Brewer Chtd., said there has to be a sense of reasonable expectations in terms of what level of secondhand smoke is permissible and what is not since the legislature has not yet drawn the demarcation line.

“Look, the legislature hasn’t gone so far to say smoking is illegal,” Fischer said. “They haven’t even said secondhand smoke is a per se nuisance.”

‘Annoyance’ clause

The neighborhood where Schuman and Popovic live is a 1,600-unit historic community that was built during President Franklin D. Roosevelt’s administration. It is governed by the cooperative association, Greenbelt Homes.

Unlike a condominium association, the cooperative has more responsibility to its tenants under landlord-tenant laws, Fischer said. All members of the co-op sign the association’s mutual ownership contract.

One clause of the contract states, in part, that members agree to use their property and common property to “respect the comfort and peace of mind of neighbors … not to engage in conduct that is objectionable conduct, and to ensure that all persons occupying or visiting in the Premises so act,” according to court documents.

A member also “agrees not to do or allow to be done … any act or thing that shall or may be a nuisance, annoyance, inconvenience, or damage to GHI or its members or tenants, or to the occupants of adjoining dwellings or of the neighborhood.”

“We felt and continue to feel that the governing documents of the cooperative provide for a resolution against nuisances,” Schuman said.

To Schuman, a lawyer for NASA, smoking rises to the level of nuisance.

“Both the cooperative and the judge put smoking in a different category due to the many, many years of people smoking,” he said.

In search of solutions

In Schuman’s case, the trouble surfaced well over a decade ago. He moved to Greenbelt Homes in 1995; the Popovics, a year later.

Schuman complained then about the problem, and the association investigated.

Through its resolution process, the association agreed, at its own expense, to seal each unit. It sealed along baseboards, cabinets and in the attic to eliminate any gaps.

Schuman’s complaints stopped for about 12 years, until 2009.

Fischer, the association’s lawyer, said the smoke became an issue after Schuman completed renovations on his home, in which the walls and cabinets in his kitchen and two bathrooms were stripped down to the studs.

Schuman disagreed, saying another neighbor experienced similar problems with the Popovics’ secondhand smoke reaching her home, and she had not completed any renovations.

The association started its review process and again offered to seal Schuman’s townhouse, but Schuman refused the offer.

“He said, ‘Nothing’s going to work except to ask them to stop smoking,’” Fischer said of Schuman. “In his mind the only answer was to evict them if they wouldn’t stop smoking.”

Schuman disputed that claim, calling the sealing offer “a bit of a red herring. It’s not effective even in theory.”

That’s because Schuman said an expert he hired said that because the units are connected by multiple pathways, it’s not possible to seal a multifamily unit.

Even if it were possible, Schuman said, it would not be healthy to make an enclosed space airtight.

“We tried very hard to work cooperatively to address the problem, but from a physical standpoint, this quote-unquote sealing is not a fix,” he said. “I would have much preferred to do that rather than go to litigation.”

Schuman has spent “tens of thousands of dollars” on his lawsuit, money he took out of his NASA retirement account.

“We thought very hard about this — what is the easiest solution that would have saved everyone time and expense?” Schuman said. “That was for Mr. Popovic to smoke as far away from the house as he can.”

Schuman said there is a common area a couple minutes’ walk from the Popovics’ home where Darko Popovic could go to smoke. He suggested the space as an alternative to Popovic’s backyard, but the association declined to tell Popovic he could smoke only there.

Instead, Schuman said, the association told the neighbors to work it out themselves, and Popovic said he planned to keep smoking in his backyard.

Up for sale

Schuman said he was left with two options: sell or sue.

“It turns out I had to do both,” he said.

Schuman placed his house on the market about two weeks before the trial began this summer. The listing noted that Schuman wanted to sell because of a neighbor’s secondhand smoke.

“The court jumped all over him and said he sabotaged his ability to sell,” Fischer said.

But Schuman said he only included his reason for selling after he and his Realtor uncovered a New York case in which an agent was sued because a dangerous health condition was not disclosed. He has since removed the secondhand smoke reference, he said.

Fischer said Schuman tried to assert in court that there had been a diminution of his property value, but Fischer said proving that would have required testimony from a real estate expert, which Schuman did not present.

Schuman said he would “be really happy to accept the first offer” on the house. He and his fiancée want to have children, and they don’t want to raise them where secondhand smoke is an issue.

Schuman said he is unsure of whether he and his attorney, J.P. Szymkowicz of Szymkowicz & Szymkowicz LLP in Washington, D.C., will appeal the court’s decision, mostly for financial reasons.

“If it was just about me, I probably would decide I couldn’t go forward,” he said. “It’s worthwhile to have some opinion on the subject from the higher court. Even if we do lose it will raise the profile of the case and show what the problem is.”

Kramer, the Montgomery County delegate, said he has heard from several people with similar problems in multi-unit buildings who have had to leave their homes because secondhand smoke has triggered asthma or other health problems.

He has met with six people — including one whose clothes reeked from her neighbor’s smoke, he said — and received emails from many others.

“Quite frankly, it concerns me that we have so many individuals whose property rights are being affected and there’s no recourse for these individuals,” he said. “Beyond the ability to enjoy their property it is a scientifically well-established health hazard.”

Kramer said it should be incumbent on the smoker to filter out the smoke as opposed to other residents sealing their homes or getting filtration systems when secondhand smoke intrudes on their private space.

He does not know how his bill will be received in Annapolis, since he said he doesn’t think the topic has ever come up in the legislature.

Fischer, Greenbelt Homes’ attorney, said there are other cases out there, including another one filed by Szymkowicz in Montgomery County.

Szymkowicz did not return calls for comment for this article; however, Schuman returned one of the calls placed to his lawyer. The website for Szymkowicz & Szymkowicz lists anti-smoking actions as one of its practice areas, and the organization Smokefree DC refers to him as a board member.

“It’s definitely not an issue that’s going away,” Fischer said. “You’re going to see more and more of these claims coming up.”