State Laws Addressing Radon, Mold and Secondhand Smoke
With one-third of the nation’s housing units occupied by renters, state policy makers can advance healthy housing goals by strengthening their laws and regulations that establish minimum conditions in rental housing. Rental housing laws are particularly important to reducing indoor exposure to air pollutants for vulnerable populations. Although renters occupy about one-third of housing units, there are nearly twice as many renter-occupied households below the poverty line as owner-occupied households. See U.S. Census Bureau, 2010 American Community Survey .
Two common types of policies that address indoor environmental conditions in rental housing are housing codes and landlord-tenant laws. Housing codes (also known as sanitary or property maintenance codes) establish minimum conditions and maintenance requirements for rental properties and are usually enforced by local housing or health agencies. Though typically adopted by local governments, some states have established housing codes that set statewide requirements. Landlord-tenant laws set forth the rights and responsibilities of landlords and tenants, including responsibility for maintaining the premises. Unlike housing codes, these laws are typically enforced privately. They provide legal recourse for landlords and tenants to address violation of the laws, including the failure to remedy substandard housing conditions.
While these policies differ from state to state, many are based on model codes and include certain basic provisions for preventing and fixing unhealthy or dangerous conditions. They generally require landlords to maintain the premises and may require that units be kept in “habitable” condition, or in “good repair” so as not to endanger the health and safety of tenants. The effectiveness of such general provisions in addressing specific IAQ issues depends on a range of factors, including the precise language of the statute or regulation, the enforcement priorities and resources of local agencies, and the resources available to tenants to pursue a claim. A 2003 ELI report discusses how local jurisdictions have used their housing laws to respond to IAQ problems.
Rental housing laws and regulations can address known health risks more directly by establishing clear requirements relating to specific indoor pollutants. Policymakers have been active in tackling certain IAQ issues in the rental housing context—e.g., lead-based paint abatement and installation of carbon monoxide alarms. State law is less developed with respect to other important indoor pollutants. Part II discusses three of these pollutants—radon, mold, and secondhand smoke—and state legislation that has been adopted to date. Check back for updates as new laws are enacted.
Part II: State Laws on Mold, Radon and Secondhand Smoke
Indoor exposure to mold and dampness can produce a variety of health effects, including respiratory problems (wheezing, difficulty breathing, shortness of breath); cough; nasal or sinus congestion; eye, nose, throat or skin irritation; and asthma symptoms in people with asthma. See National Institute of Medicine, Damp Indoor Spaces and Health (2004); New York State Toxic Mold Task Force, Final Report to the Governor and Legislature 24-38 (2010). Remedial action is generally warranted if you can smell or see mold—testing is typically not required or recommended. See California Dept. of Public Health, Mold in My Home: What Do I Do? Because mold can grow almost anywhere provided that moisture and oxygen are present, mold remediation involves both cleaning up the mold and fixing the underlying water condition that facilitated the mold growth and dampness. Important steps for preventing mold growth include maintaining acceptable humidity levels and cleaning up water leaks or spills quickly—generally within 24-48 hours. See US EPA, A Brief Guide to Mold, Moisture and Your Home.
State Laws. State housing codes and landlord-tenant laws commonly include some provisions that address the underlying water and moisture problems that cause mold contamination—e.g., requirements for: adequate ventilation (generally and/or in bathrooms and kitchens); adequate plumbing (fixtures maintained in good working order, free from leaks); weathertightness (structural components maintained to prevent moisture intrusion); and non-absorbent surfaces (bathroom, kitchen surfaces impervious to water).
Legal provisions such as these can be important to ensuring the correction of defects that cause mold and dampness. Most codes do not, however, explicitly mention “mold” or require mold cleanup. At least one local jurisdiction, San Francisco, has addressed mold directly in its housing code and nuisance law. At least three states and the District of Columbia have enacted legislation establishing explicitly a landlord’s duty to prevent and address mold contamination as part of the landlord-tenant law or building/sanitary code.
Radon is a naturally-occurring, radioactive gas produced by the breakdown of uranium in soil, rock, and water. Indoor exposure to radon is the second leading cause of lung cancer in the United States and the leading cause of lung cancer among non-smokers. According to the U.S. EPA, indoor radon exposure is responsible for about 21,000 lung cancer deaths in the U.S. each year, with nearly 3,000 deaths among people who have never smoked.
The concentration of radon in indoor air is affected by the way homes are constructed. EPA has established a radon “action level” of 4 picoCuries/liter (pCi/L)—the level at which a building owner should take action to reduce radon in the indoor air. However, because there is no known safe level of exposure to radon, EPA also recommends that people consider fixing their home when radon levels are between 2 pCi/L and 4 pCi/L. Elevated indoor radon levels can exist in all parts of the U.S., and the only way to know the radon level in a particular home is to test the home for radon. If testing reveals elevated levels, there are well established, cost-effective methods for installing radon reduction systems. See http://epa.gov/radon/pubs/consguid.html, http://www.epa.gov/radon/pubs/mitstds.html.
State Laws. While general habitability and good repair provisions found in housing codes and landlord-tenant laws are potentially relevant to situations where tenants are exposed to elevated radon levels, they may not provide a strong foundation for effective public enforcement or private (tenant) legal action to reduce elevated radon levels. Two states have laws that address the subject of radon in rental housing directly, though neither provides a strong model for state legislation. The state of Maine requires landlords to test for and disclose radon levels in their properties. In Illinois, the law requires landlords to disclose known elevated radon levels.
Secondhand smoke (environmental tobacco smoke) contains over 250 carcinogenic or toxic chemicals and causes about 3,400 lung cancer deaths and 46,000 heart disease deaths among nonsmokers each year. National Toxicology Program, 12th Report on Carcinogens (2011); Centers for Disease Control and Prevention, Secondhand Smoke. Children exposed to secondhand smoke face an increased risk for sudden infant death syndrome (SIDS), acute respiratory infections, ear infections, and more severe asthma symptoms. Office of the Surgeon General, The Health Consequences of Involuntary Exposure to Secondhand Smoke (2006).
According to the U.S. Surgeon General, the scientific evidence is sufficient to conclude that there is no risk-free level of exposure to secondhand smoke. Office of the Surgeon General, , A Report of the Surgeon General: How Tobacco Smoke Causes Disease . “Eliminating smoking in indoor spaces fully protects nonsmokers from exposure to secondhand smoke. Separating smokers from nonsmokers, cleaning the air, and ventilating buildings cannot eliminate exposures of nonsmokers to secondhand smoke." Health Consequences at 11. Thus, even if a tenant does not smoke, he or she may still risk exposure to secondhand smoke that seeps through shared walls, ventilation systems, windows, and doors.
State Laws. In general, state housing codes do not address directly the issue of secondhand smoke and thus do not provide a strong foundation for code enforcement in cases where tenants are harmed by drifting smoke. Some of the broad provisions contained in state landlord-tenant laws may provide a basis for legal action by tenants in certain cases.
A number of municipalities (primarily in California) have enacted ordinances prohibiting or significantly restricting smoking in multi-family housing. At the state level, several states that have enacted laws banning smoking in public places have included in these laws a ban on smoking in common areas in multi-family residential buildings. The smoking laws in Arizona and Minnesota are two examples of this approach, which does not address exposure resulting from smoking within individual rental units.
The state of Utah has enacted a nuisance law that defines drifting smoke as a nuisance. This strategy may provide tenants with legal recourse in certain circumstances.
At least three states have enacted laws that require disclosure of a building’s smoking policy. This strategy may encourage prospective tenants to consider potential exposure to second-hand smoke and may indirectly encourage property owners to adopt no-smoking policies. In addition, California's landlord-tenant law affirms a landlord's right to prohibit smoking and requires notice to tenants of any smoking ban.
Last Updated: Sept. 2014