Holding a Realtor's® Feet to the Fire over Second-Hand Smoke

Real Estate Agent with The Buyers' Counsel

Cigarette BurningIn a case that had more than a scent of trouble, a Massachusetts jury has rejected a woman's claim against her Realtor® in a lawsuit involving second-hand smoke.  It was the first suit of its kind to make it to trial in the state. 

When 32 year old Alyssa Burrage first visited the bright and sunny parlor-level condo in Boston's South end she distinctly remembered the smell of smoke permeating the air. When she mentioned this fact to her broker, he assured her that the owner of the unit must have been a smoker and that the odor could be made to disappear. 

After purchasing the unit for $405,000 and paying an unspecified amount in repairs she moved into her new home only to make an unpleasant discovery.  

Not only was the smoke smell still there but it seemed as though it was emanating from the condo below.  Apparently, one of the two men who lived there was a smoker.  Burrage asked the condo association for help with the matter but it was to no avail. 

Living with a life-long condition of asthma, she ended up in a situation where it was a struggle to breathe in the smoke-filled environment and eventually had to move out of her home. 

During her week-long court case, Burrage remembered that the broker had burned candles at his open house and had passed off the cigarette smell as something that would go away after she moved in.  

Well - it didn't.  And, her attorney asked for more than $70,000 in damages for personal injuries along with the cost of remodeling the condo. 

In the end, it took the 14-member jury less than an hour to rule in favor of the Sotheby Realtor®.  

My guess is that the agent: 

  1. had a good attorney, and
  2. was lucky to have drawn this jury.

Whatever the outcome for this Realtor® implies, I think the fact that this case went to trial underscores the significance of second-hand smoke issues.  And, before we pass it off as something that will probably just go away - perhaps a little more investigation is in order. 


Copyright 2010 - Holding a Realtor's® Feet to the Fire over Second-Hand Smoke

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Claudette Millette, Broker, Owner, The Buyers' Counsel - a Buyer Broker Since 1992

If you have questions about buying a home in Massachusetts please give me a call at 508-881-6230 or Email Me.  It would be a pleasure to talk with you.

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Jenna Dixon
DRA Homes | Cobb County Real Estate - Marietta, GA
Empowers You With a Better Real Estate Experience

I'm going to take a pass on a long comment and just say that this is one of the MOST RIDICULOUS things I have ever heard.  I agree with the comments above: Buyer responsibility.  End of story.

Feb 18, 2010 07:33 AM #81
Dan and Amy Schuman
Howard Hanna Real Estate Services - Solon, OH
Luxury Home Specialists

Claudette, this is a very interesting post. We both hate the smell of cigarette smoke, but based on the facts of the case, seems like the correct verdict.

Feb 18, 2010 08:03 AM #82
Lenn Harley
Lenn Harley, Homefinders.com, MD & VA Homes and Real Estate - Leesburg, VA
Real Estate Broker - Virginia & Maryland

Due diligence is the responsibility of the buyer.  If the buyer did in fact, have a medical condition exacerbated by second hand cigarette smoke, she should have moved into a non-smoking building.

With circulating heating and cooling systems, second hand cigarette smoke can waft from unit to unit far wider than just a contiguous unit.  I rented an apartment for a year while my home was under construction and was bothered by smoke from a unit 3 units away on the other side of the hallway and one story down.

Glad it went the way it did because agents are not responsible for everything that happens. 

If the lady has asthma, why was she hanging around a unit with candles burning?????

Thanks for posting this.  I read about the case and hoped to read about the outcome.  Now we know.

Feb 18, 2010 08:04 AM #83
Gordon W. Miller
Green Mountain Real Estate - Burlington, VT

Based upon the facts presented it appears that the buyer was looking for an excuse to get someone to pay for the remodeling expenses. Fortunately, the jury could see through the "smoke screen"

Next case.

Feb 18, 2010 08:26 AM #84
Damon Gettier
Damon Gettier & Associates, REALTORS- Roanoke Va Short Sale Expert - Roanoke, VA
Broker/Owner ABRM, GRI, CDPE

I along with many people do not like smoke.  If I had a health condition though, I would have investigated further before buying.

Feb 18, 2010 08:33 AM #85
Not In Real Estate Any Longer
Autaugaville, AL

This is a two-headed coin.

I have asthma, and I KNOW I would have walked out the minute I smelled smoke in that unit...especially such an expensive one! What was the buyer thinking?

On the other hand:

As an agent, and if I knew my buyer had asthma, at the faintest smell of smoke I would have suggested that she walk away. If she refused my advice I would have inserted a condition stating that fact and got her to initial it - case closed.



Feb 18, 2010 08:53 AM #86
Teresa Boardman
Boardman Realty - Saint Paul, MN

I would never tell a client that the smoke will just go away and that the woner is probably a smoker.  STUPID!

Feb 18, 2010 09:07 AM #87
Mary Cassidy
Coldwell Banker - San Francisco, CA

Did the buyer research the question?. Did she ever ask the sellers if they smoked?


Feb 18, 2010 09:20 AM #88
Kerry Jenkins
Prime Properties - Crestline, CA

I would have thought that the disclosures would have said that the owner was a smoker. If it didn't then there would have to have been another cause, ie neighbor.  That Realtor did get lucky.

Feb 18, 2010 09:54 AM #89
Bill Petrey
AgentHarvest - A Real Estate Agent Finder Service - Dallas, TX

My major concern is that the ease and ability for someone to sue for ANY reason will make our occupation nothing more than a useless taxi service.  If we can be held accountable for conditions our clients hide from us then it's pretty much over for our profession. 

Pretty soon, the only answer Realtors will be able to give is "I don't know" or "I can't comment on that."  Any other answer will get you sued.

While this may not be the best example for my point, it feels good to vent anyway.

The agent should not have given the impression that the odor would go away, but how is lighting a candle wrong?  If he baked cookies instead, I doubt anyone would have criticized even though it's the same thing.

Ultimately it's her fault she bought the place and as a result, should be her problem.  If smoke and breathing was that big an issue, why would she take the chance?

Feb 18, 2010 11:03 AM #90
Claudette Millette
The Buyers' Counsel - Ashland, MA
Buyer, Broker - Metrowest Mass


I agree that these were two conflicting stories and that the jury seemed to believe the broker.  I just think, if it got as far as a courtroom, it could well have gone the other way with a different jury. 

Dick & Dixie: 

I think that is the point.  Anyone can sue and you would be caught up in legal fees trying to defend yourself. 


I don't think he really tried to find out.  


If you are saying that buyers should be represented by buyer brokers, I am in total agreement.


Correct, correct, correct... 


I guess in this case the jury agreed with you. 


That was suggested earlier by Richard.  It is a good point. 


It is a good lesson to not assume anything. 


I am glad you found it interesting. 


Absolutely - According to the buyer he stated an opinion that the smoke could be eliminated.  Regardless of the fact that she did not prevail, no one wants to the expense or grief of having to go through a lawsuit. 


We can always use words of wisdom from Shakespeare. 


As always, there are two sides to the story. 


I guess the jury agreed - She should have done more checking.  


I am not sure what you mean by that. 


We do have to be careful when representing anything about a property.  Should the buyer have checked further?  Perhaps, but we also need to be thorough, particularly when representing a buyer.


That is an interesting point. We don't know the make-up of the jury.  There may, indeed, have been someone on it with asthma.  I think my point is that you never know how a jury will be made up. We want to avoid this situation by doing the right amount of due diligence in a case like this. 


That is a good point.  In a condo situation, anyone can possibly buy and move into the unit next door.  I don't think she would be completely safe unless she moved into a smoke free building. 


As a buyer broker I would have been very cautious with this situation and tried to find out as much as possible about the building.  However, I don't think this agent was a buyer broker.  As a listing broker in Massachusetts you only have to divulge information that you already know.  


I have used air filters to get rid of a smoke smell but in a condo situation, you cannot really do anything about the neighbors. 


I have worked with many people who have allergies and sensitivities.  They really need to be away from carpeting.  


Yes, an attached property is going to present a whole different set of problems. 


I think the agent may have been fortunate. 


I don't really have any information on her inspections but that would not have solved the problem with the neighbor. 


You are right - the only way you can be assured in a condo is if the entire building is made "smoke-free." 


The issue of second hand smoke is one that is not going away. I think we may actually see more smoke free buildings come into play. 

Chris Ann: 

I think a different jury could have produced a different result.  I know from experience that it really depends on who is sitting on a jury. 


I guess we have to consider everything.  I have always said that selling a condo is more complicated than selling a single family home. There are so many more issues to think about. 


Actually, he said that he thought the previous owner had been a smoker and that the odor could be eliminated.


Smoke is becoming more of a concern.  We need to be careful. 


I think we may actually see more smoke free buildings but this was not one. 


I am not sure why she did not go after the building.  It should have been more air-tight between floors to prevent this type of problem.  Although someone who is super sensitive to cigarette smoke should probably not even consider living in a building where anyone smokes.  It is going to be in the hallways and drift up through open windows. 


There are conflicting accounts of what he actually said. 


That is probably how the jury felt to have ruled the way they did. 


If he did say what she claimed, I agree with you.  We need to be cautious and caring about anyone with a health issue. 


Since she has moved out of the condo it does seem likely that she will be selling it. Probably a single family dwelling is the best place for someone with these types of health concerns.  


I think the jury may have agreed with you. 

Dan & Amy: 

I hate it too, and it seems that the more you are away from it the more repugnant it becomes when you do come in contact with it.  


I don't know how many non-smoking condo buildings there are in Boston. But I do agree, with health problems like these, you really cannot be in a building where anyone smokes.  It is going to come through the heating system and drift through the hallways. 


Point taken - but it was her contention that the broker told her it would be alright if she did some renovations.  I think that was where her argument was coming from. 


I think that is a good point that could be learned from this.  In a case like this when someone has specifically said that they are bothered by the smoke smell you may want to get them to sign a waiver stating that they are aware of the smoke. 


I think that was a mistake if he actually said that and this is where the problem emanated from. 


Our pre-printed seller disclosures do not have any questions in them about whether or not the seller is a smoker.  But that would be something I would want to know. 


It is, actually, quite easy to take someone to court over an issue.  However, winning is another matter.

Feb 18, 2010 01:23 PM #91
Toula Rosebrock
Diane Turton, Realtors, Forked River, NJ - Lacey Township, NJ
Broker/Sales Associate, Realtor, Lacey Township,

Hi Claudette:

Great post.

That case could have easily gone against the agent, since he stated that it would go away after she moved it.

We all need to learn from this type of scenario.


Feb 18, 2010 02:04 PM #92
Chris Olsen
Olsen Ziegler Realty - Cleveland, OH
Broker Owner Cleveland Ohio Real Estate

I once was a tenant in a two-family with ONE shared HVAC system, and the two women below were heavy smokers.  We told the owners of the building we were moving out and they kept our security deposit.  We went to court, won, then placed a lien and 15 years later, we got triple damages plus interest.  We had long forgotten about this case, it wasn't about the money, but the principle of it.  Had it been a 400K condo, that would have been a different story.

Feb 18, 2010 02:18 PM #93
Sonsie Conroy
I serve buyers and sellers everywhere in San Luis Obispo County - San Luis Obispo, CA
Energetic, Enthusiastic, Knowledgeable Realtor

The part of this story that is so disturbing is that the agent told the woman that the smoke must be from the previous owner and that it could be cleaned up. The agent knew no such thing for sure, and attempted to gloss over a situation he/she didn't have the facts about, presumably to save the sale. IMO, the correct answer is, "I don't know what is causing that odor, but I will do my best to find out." If the smoke couldn't be tracked down, or if the culprit turned out to be the downstairs neighbor. then the buyer can just not close the deal. But to gloss it over like that is dangerous in terms of being sued.

Feb 18, 2010 02:52 PM #94
Frank Castaldini
Coldwell Banker - San Francisco, CA
Realtor - Homes for Sale in San Francisco

If the odor was so strong then the buyer should have been concerned about it's lingering affects.  The reality is she knew about it and that's probably why she lost.  Anyway, you do have to get lucky with a jury.

Feb 18, 2010 03:57 PM #95
J. Philip Faranda
J. Philip Faranda (J. Philip R.E. LLC) Westchester County NY - Briarcliff Manor, NY

In the article link posted on the Boston Globe website, the commenters overwhelmingly agree with the jury. 

Feb 18, 2010 10:48 PM #96
Drick Ward
NEPTUNE REALTY - Virginia Beach, VA
"RealtorDrick" - Experienced Representation

Claudette, bless you for responding to all of our comments.  My point on her doing more thorough inspections was that if she had investigated far enough to determine it was indeed the neighbors, she could have withdrawn from the purchase and bought somewhere more suited to her.  I am surprised, however, at the agents who side with her (but I'm still glad she lost.)

Feb 19, 2010 07:55 AM #97
Claudette Millette
The Buyers' Counsel - Ashland, MA
Buyer, Broker - Metrowest Mass

Hi, Drick:

Thanks so much for your comments on this post.

Unfortunately for the buyer in this case, she did not investigate completely until after she was already living there. You are right.  If she had discovered the situation with the neighbors prior to purchase she would have been able to withdraw from the offer.

I am not sure that so many agents completely sided with her on this. I think it was rather a wake-up to be more cautious in these types of circumstances. If the broker really did "gloss over" the situation with the smoke odor and told her that it would be solved by painting and renovating, that was a misstatement on his part.

Feb 19, 2010 10:13 AM #98
Norma Crouse
HER Realtors - Pataskala, OH
Norma Crouse

I recently read that the person did sue the condo association or owner (can't remember) and they paid her so they would not have to go to court (that is what was said their reason was for paying).  I have lived in apartments where people next door and below me have smoked and I have never smelled smoke from their apartments.  I am sensitive to cigarette smoke too but unless you move into a non smoking building, I don't see how you can expect that other people will not smoke or have people over who smoke.

I sometimes light candles and have had owners bake cookies and it's not always because their home smells - I just think it makes it smell nice. 

The last condo I sold, I have no idea if the people next door smoked or if whatever the people next door were doing, the smell would not come thru the walls.  I think the whole thing sounds a little crazy.  Especially since she knew that cigarette smoke bothered her and she smelled it and still bought the place.


Feb 20, 2010 07:24 AM #99
Jane Peters
Home Jane Realty - Los Angeles, CA
Connecting you to the L.A. real estate market

Interesting outcome.  I wonder if the realtor really knew where the smoke was coming from.  If so, that was not the correct judgement. 

Feb 21, 2010 06:41 AM #100
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