State Laws Addressing Radon, Mold and Secondhand Smoke
Under Utah’s landlord-tenant law, rental agreements may prohibit or allow smoking tobacco products within the residential rental unit or on the premises. Utah Statutes §57-22-5. Utah’s state nuisance law, however, defines drifting tobacco smoke as a nuisance and sets forth the limited circumstances in which tenants may pursue a cause of action when they are harmed by drifting smoke.
Drifting smoke defined as a nuisance. Utah’s nuisance law defines a nuisance as “anything which is injurious to health, indecent, offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property." Utah Stat. §78B-6-1101(1). The law provides examples of conditions that constitute a nuisance, and specifically states that a nuisance includes “tobacco smoke that drifts into any residential unit a person rents, leases, or owns, from another residential or commercial unit” if the drifting smoke fits within the general nuisance definition and drifts in more than once in each of two or more consecutive seven-day periods. Utah Stat. §78B-6-1101(3). The definition does not apply to hotels, motels, vacation rentals, or rentals for 30 days or less.
Enforcement/Penalties. The state nuisance law is not enforced by public agencies. Rather, the law provides for private actions by “any person whose property is injuriously affected, or whose personal enjoyment is lessened by the nuisance.” Utah Stat. §78B-6-1101(6). A court may order that the nuisance be enjoined or abated and may award damages. Utah Stat. §78B-6-1102. This right of action is restricted, however, in cases involving drifting tobacco smoke.
The law provides that that a tenant has no cause of action for drifting smoke if the rental agreement states in writing that smoking is allowed in other units and that smoke from those units may drift into the unit subject to the agreement. The disclosure must also notify tenants that by signing the agreement, s/he is waiving any right to a cause of action for nuisance. Utah Stat. §78B-6-1106(1). In cases where a landlord does not provide the above disclosure, the tenant may bring a cause of action against the individual who is generating the tobacco smoke or the renter who permits/fails to control the smoke in violation of the rental agreement. Utah Stat. §§78B-6-1106(2)(a), (b).
Causes of action against landlords are even more restricted. A tenant may only bring a cause of action against a landlord if the rental agreement provides that the unit will not be subject to drifting smoke. In such cases, the tenant may pursue an action if the landlord knowingly allows the nuisance to continue after receiving a written notice from the tenant. Utah Stat. §78B-6-1106(2)(c).