Condo owner sues real estate agent for secondhand smoke

In a case with implications for those who buy and sell secondhand-smoke-filled apartments in New York, a Boston jury is expected to decide a first-of-its-kind secondhand smoke lawsuit against a Massachusetts real estate broker today.

The broker is being sued by a buyer who says she was lied to about the source of secondhand smoke in the lofty $405,000 condo.  The broker allegedly blamed the seller rather than the downstairs neighbors, offering reassurance that the smell would disappear after seller moved out.

It did not.

The buyer—a 32-year-old woman with a history of asthma—ultimately fled the smoky apartment after two years and a $45,000 renovation.  She also sued and settled with her downstairs neighbors and her condo board.

Manhattan real estate lawyer Aaron Shmulewitz tells BrickUnderground that New York brokers are vulnerable to similar lawsuits if they lie about the source of secondhand smoke.

“Brokers have an obligation to not misstate material facts,” he says. “If they don’t know the source of the smoke, that’s one thing.  If they deliberately say the source of the smoke is the outgoing seller and that’s a lie, they should be held liable.”

The amount of damages are hard to prove though. Shmulewitz says a logical measure might be the difference in value between a smoke-filled apartment and a smoke-free one.

“This whole area is very subjective," he cautions. "One person could be bothered tremendously by smoke, while another person might not be,” he notes.

UPDATE 2/17/10: Condo owner loses secondhand smoke lawsuit against real estate agent

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