What are apartment communities
not disclosing to their potential tenants, and how is a landlord's
silence severely harming your health? In search for an apartment, Mr.
Paul Marshall and his wife Dianne noticed the various "no
smoking" signage at Alexan Palm Valley Apartments in Texas. They
also took special notice to what is stated in the lease, "You
and your occupants or guests may not engage in the following
activities: disturbing or threatening the rights, comfort, health,
safety, or convenience of others." Delighted, Paul and Dianne
settled into their Alexan apartment owned by Trammell Crow
Residential/BCRE Palm Valley LLC, and on August 7, 2009 is when their
nightmare began. In making their initial, official written
notice to Alexan's management in August of 2009, Mrs. Marshall
states, "There is cigarette or cigar smoke coming from our
shared outside community spot, and the smoke is coming into our
apartment through the windows that we like to leave open for fresh
air." The Owner's legal team states, "The Owner's
representative contacted your downstairs neighbor in an attempt to
resolve the matter." They continue, "It is my understanding
that your downstairs neighbors have limited smoking to outside their
unit." Explains Mrs. Marshall, "The smoking outside is
quite an issue for the both of us." The apartment
management responds, "The smoke would also be able to go through
a/c vents, etc. into your apartment if they were to smoke inside
versus outside. Smoking on their patio as opposed to their apartment
is the best case scenario. At least in this case all you would have
to do is close your window when they are outside." In further
discussing this matter with the Owner's legal representation, one of
their attorneys states, "Part of the problem you have had is
because you have left your window open, allowing smoke from outside
the downstairs unit to come into the Premises." The Marshalls
shared their pain with the Owners, "We have felt like prisoners
behind bars (with having to close windows in order to breathe)." Is
there anything that Trammell Crow Residential/BCRE Palm Valley LLC
can do about the tobacco smoking outside? Stated in the Marshall's
lease contract, "We may regulate: (1) the use of patios,
balconies, and porches; (3) recreational activities in common areas."
Yet, the apartment manager says, "I have no grounds to tell your
neighbors that they can't smoke on their patio." Also in the
Marshall's lease contract, "You and all occupants and guests
must exercise due care for your own and other's safety and
security." Who is Trammell and BCRE? Trammell Crow
Residential ("TCR") is America's premier multi-family real
estate firm. As further stated on their website: Since inception, TCR
has developed over 225,000 multi-family units in most major markets
across the country. TCR created the Alexan brand. Confirmed by
the Owner's legal group, BCRE Palm Valley LLC is listed as the Owner
of the Alexan Palm Valley Apartments in Texas. On April 12, 2010, The
National Multi Housing Council recognized Boston Capital -- the
Boston-based real estate investment and advisory firm founded by Jack
Manning -- as the largest owner of apartments in the country. Boston
Capital established Boston Capital Real Estate Partners ("BCRE")
in 2002 to capitalize on its expertise in all facets of multifamily
transactions. The
Owners offered the Marshalls a transfer to another apartment unit,
and why didn't the Marshalls accept this offer? Greystar is the
property management company for the Alexan Palm Valley Apartment
Community. Here's what Greystar's legal representative has to say.
"Allow me to point out that you have previously been offered an
opportunity, both on September 10, 2009 and again on September 28,
2009, to transfer from the Leased Premises to another unit at Alexan.
You declined such offer." What is not mentioned by this attorney
in his correspondence and is the deal-breaker for the Marshalls? As
the Alexan management explains: "There would be no guaranty
[sic] that your new neighbors do not smoke too." As an employee
of Greystar puts it, "Management offered a transfer to another
unit within the community, but similarly would have no assurance that
a similar situation would not broach itself at a later date." Alexan
management previously knew about the fact that Mrs. Marshall is
blind. The acting manager at the time received this plea from Mrs.
Marshall: "The cigarette/cigar smoke is becoming absolutely
unbearable for me with my eyes paining/burning/watering (and, it is
certainly challenging enough to be without vision and to have these
other avoidable/unnecessary eye challenges really has an unpleasant
compounding effect)." The Marshalls further state, "This
issue is very serious as you may not be aware of our intense
sufferings from the drugging smoke. Every day, we feel like we are
being drugged forcefully." In a recent written
correspondence dated November 29, 2010, the Marshalls explained to
one of the Owner's attorneys the following: "It is egregious
behavior to keep silent on health related matters, to have a client
rent and then discover the danger to their health. After all of this
... it is unconscionable to present an opt out from the lease and to
place the burden of time, effort and monetary output on us to move.
If we were made aware beforehand of all the information we found out
after August 7, 2009, we would not have rented at Alexan. Over the
past 15 months, we have experienced tremendous and completely
unnecessary discomfort in our living environment." Courts
have repeatedly shown that rights are for where you are, to be
enforced and obeyed there. The latter-stated is what Mr. and Mrs.
Marshall desire. Knowing this fact and on more than one occasion, one
of the Owner's attorneys says, "We look forward to hearing from
you in the event you would like to accept the Owner's offer to
terminate the Lease." The Marshalls would have to accept the
following along with the termination offer, "... and release the
Owner and the Owner's managing agent from all claims." After
the Marshalls were offered an opt out of their lease and declined,
here's what they received from one of Greystar's employees: "Gerald
Elrod does work in air duct projects for the City of Austin and he
can offer some insight as to how to best mitigate common air between
units." Mr. Elrod performed the work in the Marshalls' unit.
However, The Center for Energy and Environment and The American
Society of Heating, Refrigeration and Air-Conditioning Engineers (the
latter-stated is the body that sets the standard for indoor air
quality) shows that ventilation technology is insufficient to protect
building occupants from second-hand smoke. Was the apartment
management aware of the effects from tobacco smoke? Alexan's
management educates us on tobacco smoke's damaging effects to an
apartment unit, and here is what they say in their own words. "Cigar
smoke does extensive damage to the interiors of the apartment.
Typically the carpet has to be replaced and special treatments done
to the walls, cabinets and even window treatments when residents
smoke heavily in their apartments." Let's find out if Alexan's
management understands tobacco smoke's effects to peoples' health? In
the words of Alexan's management: "Typically businesses that
have a designated smoking area have one set up outside as opposed to
inside so that any smoke can released [sic] into the atmosphere as
opposed to an interior space where it would be more hazardous to
people's health." Does TCR/BCRE have the ability to offer
the Marshalls a healthier lifestyle at their Alexan apartment home?
Here's what Trammell's managing director for Alexan CityView
Apartments in NJ, Richard Murphy says, "We believe the decision
to introduce this new building -- which will be the only 100% smoke
free rental offering in the state -- will be embraced by a growing
segment of the public that seeks a healthier lifestyle at home."
Here's Alexan's mission statement: "Our Owners and Management
Team are focused on creating value for each resident while enhancing
their quality of life." However, according to one of the Owner's
attorneys regarding Alexan Palm Valley in Texas, "The community
is not a smoke-free community and the Owner has no intention of
having the community be a non-smoking community." He also states
to Mr. and Mrs. Marshall, "The Owner is sensitive to your
concerns about the damages of smoking."
Besides Alexan
CityView, does Trammell Crow Residential have any other Alexan brand
apartment communities that are non-smoking? Alexan Southwood in
Florida is advertised as a 100% smoke-free community. Alexan
Riverdale and Alexan Twenty-Four in Virginia have on their websites,
"Clean Air Breathe Easier." On their websites ... Alexan
Riverdale has, "Option to live in a 100% smoke-free building"
and Alexan Twenty-Four has, "100% smoke-free community." An
attorney for the Owners states, "The Owner cannot keep smokers
from smoking in or outside their units." In the words of
Greystar's property management, "Smoking is not a situation that
we could directly control either now or in the future."
"A new paradigm needs to take
precedence whereby Owners of apartment communities are held
accountable for not disclosing important health-related information.
Their silence is severely hurting people and this behavior is
inexcusable," states Mrs. Marshall. "The biggest question
to ask is why landlords of apartment communities are silent about
allowing tobacco smoking," states Mr. Marshall. The Marshalls
continue to reside at Alexan and are seeking resolution.
Is
breathing in second-hand tobacco smoke dangerous? The 2006 report of
the U.S. Surgeon General, The Health Consequences of Involuntary
Exposure to Tobacco Smoke, cautions -- there is no risk-free level
of exposure to second-hand smoke and that even small amounts of
second-hand smoke exposure can be harmful. The EPA (Environmental
Protection Agency) classifies second-hand smoke as a group A
carcinogen for which there is no safe level of human exposure. Due to
cigarettes' inherently deleterious nature and ingredients, they
when lit emit deleterious emissions. Deleterious ingredients
include and are not limited to acetaldehyde, arsenic, benzo
(a)pyrene, cadmium, crotonaldehyde, ethylcarbamate, formaldehyde and
radioactive polonium. There is widespread scientific consensus
that exposure to second-hand smoke is harmful. The link between
passive smoking and health risks is accepted by nearly every major
medical and scientific organization, including: The World Health
Organization, The U.S. National Institutes of Health, The Centers for
Disease Control, The United States Surgeon General, The U.S. National
Cancer Institute, The United States Environmental Protection Agency,
The California Environmental Protection Agency, The American Heart
Association, American Lung Association, American Cancer Society, The
American Medical Association, The American Academy of Pediatrics, The
National Research Council, The National Toxicology Program, American
Public Health Association, American Thoracic Society, The American
College of Preventive Medicine, The British Medical Association, The
Australian National Health and Medical Research Council and The
United Kingdom Scientific Committee on Tobacco and Health. The
governments of 168 nations have signed and currently 170 have
ratified the World Health Organization Framework Convention on
Tobacco Control, which states that "Parties recognize that
scientific evidence has unequivocally established that exposure to
tobacco smoke causes death, disease and disability." As
recognized by the afore mentioned major medical authorities and
scientific organizations, the onset of severe health afflictions is
not a question of if; it is a question of when. Identifying TTS
(toxic tobacco smoke) as a TAC (toxic air contaminant) "rightfully
puts second-hand tobacco smoke in the same category as the most toxic
automotive and industrial air pollutants." ... says California
Identifys Second-Hand Smoke as a "Toxic Air Contaminant"
(26 January 2006).
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