A Tenant's Nightmare

This case study demonstrates why it is important to develop laws to protect nonsmokers in group housing areas. The lack of courtesy by smokers who live in crowded areas and the lack of responsible management forces us to demand public action.

October 3, 1993 - Tenant moves into top floor apartment at the Netherwood Village Apartment in Albuquerque, New Mexico. Complex is managed by local property management company, Roger Cox & Associates. They claim to be "professional management company."

Roger Cox & Associates Office Complex in Albuquerque
[Click on the yellow circle for details]

Tenant remains in good standing with apartment management. He has many friends and is well-liked. Tenant is considered for staff position within complex.

August 1996
Roger Cox & Associates moves female resident into second floor apartment directly below male tenant.

Female resident is a heavy smoker approximately 18 years of age. Resident has many visitors both early in the morning and late at night. Most of the visitors are smokers. They do not smoke indoors because it "stinks up the apartment."

August 22, 1996: 8:00am
Male tenant wakes to find bedroom filled with secondhand cigarette smoke. He suffers severe allergic reaction; develops migraine headache and major sinus congestion. This leads to serious sinus infection.

The image at left is a top view of the smoker's apartment balcony taken from the third floor tenant's apartment. The illustrates the amount of smoking by these residents.

August 22, 1996: 10:00am - Tenant contacts property manager by telephone. Tenant asks that management assist with problem. Tenant asks that Resident smoke on alternative outdoor balcony. Manager states that she cannot do anything. Recommends that Tenant speak directly to Resident.

August 22, 1996 - Tenant contacts property manager second time. Asks manager to contact parent management company, Roger Cox & Associates. Property manager calls back and informs tenant that Roger Cox & Associates representative agrees that they cannot do anything. Again, recommends that Tenant speak directly to Resident.

August 23, 1996 - Tenant submits written complaint about the second-hand smoke to property manager. Tenant asks that Resident smoke on alternative outdoor balcony.

August 24, 1996 - Tenant has in-personal meeting with property assistant manager. Assistant manager states that they cannot do anything. Assistant manager recommends that Tenant speak directly to Resident.

August 25, 1996
Tenant meets with other residents who have similar problems with second-hand tobacco smoke.

Residents create charter tenant association pursuant to New Mexico Statutes Annotated Uniform Owner-Resident Relations Act [47-8-1 through 47-8-51 NMSA 1978].

They name the association, Citizens for Clean Air in Apartments (CCAA).

August 25, 1996 - Tenant contacts Resident. They have friendly conversation. Tenant gives Resident written request that she smoke on alternative outdoor balcony or inside apartment. Resident agrees to smoke in alternative location.

August 26, 1996
Resident tells Tenant she will continue to smoke on primary outdoor balcony.

She states property manager told her she had the "right" to smoke where she wanted.

Image at right shows one of the apartment managers and the facility maintenance man smoking inside the complex.

August 27, 1998: 9:00am - Tenant submits second written request for help with second-hand smoke problem. Includes request in a 50-page document titled, "Issues of Non-Smokers Rights: A Compendium of Summary Research." Tenant requests that management instruct Resident to "stop her practice of smoking in that area."

August 27, 1996: 2:30pm - Property and assistant manager deliver written notice to Tenant. They acknowledge his complaints regarding smoking. They claim they strive to ensure all residents have the opportunity to peacefully enjoy their apartments. They state that the "resident in D212 in no way violates the lease agreement by smoking in or around the apartment premisses [sic]. They state that Tenant has been "inflicting verbal abuse and harassment on the resident in D212." They instruct Tenant he will be required to leave the apartment complex when his lease expires on October 31, 1996.

August 28, 1996 - Tenant goes to UNM Student Health Center due to complication with sinus infection. Tenant has broken blood vessel in right eye. Tenant has never has such a medical situation. Tenant's blood pressure in elevated, his visual acuity is impaired.

September 7, 1996 - Tenant holds second CCAA association meeting. The group establishes a plan of action to inform other residents of issues related to second-hand cigarette smoke.

September 12, 1996: 10:00am - At the request of Roger Cox & Associates, Tenant meets with Vice President Brian Anderson and associate Kerry Lujan. The representatives of Roger Cox & Associates give Tenant a letter from their attorney, Randall Thompson. Thompson's letter instructs Tenant to:

(1) circulate among the residents a written retraction of your previous written statements concerning an entitlement to a thirty-three percent abatement of rent and my client's violation of its obligations as an owner under New Mexico law, and

(2) cease and desist from making any further erroneous statements,

Thompson's letter states that his client "understands that you have been bothered by the actions of one of your neighbors." Yet claims that his client is not obligated "under New Mexico law or its existing Rental Agreement and Rules and Regulations to require your neighbors to refrain from an activity that is not otherwise unlawful or actionable."

September 12, 1996: 10:10am - Anderson asks Tenant is he will comply with the two above listed items. Tenant believes these provisions conflict with his First Amendment rights to assemble and speak. As a result, Anderson and Lujan give Tenant a formal 30-day notice to terminate the rental agreement.

January 2, 1997 - Tenant submits monthly rent check to manager, Janann McCumber.

January 3, 1997: 5:00pm - Manager McCumber and Robert Garcia return Tenant's monthly rent check. They state that the check in not being accepted pursuant to the Thirty-Day Notice to terminate the lease agreement.

January 21, 1998: 8:30am - Tenant is ordered to appear for trial before Albuquerque Metropolitan Judge, Geraldine Rivera. Tenant requests proceedings to be taped. Rivera finds for plaintiff, Roger Cox & Associates. As such, Tenant is ordered to forfeit the rental agreement, to restore the premises to the Plaintiff; and that that the Plaintiff shall recover from Defendant the following amounts:

The Writ of Restitution is issued effective January 24, 1997. Tenant has three days to vacate the premises.

January 22, 1997 - Tenant posts cash bonds with the Metropolitan Court in the amount of $1,866.22. Tenant intends to appeal to the District Court.

January 23, 1997: 1:13pm - Tenant files Notice of Appeal with the Metropolitan Court.

January 31, 1997 - Tenant files a pro-se appeal for hearing with the Clerk of the District Court.

February 1, 1997 - Tenant vacates premises and restores property to Roger Cox & Associates representative, Lisa Kessler. Tenant and Kessler agree that Tenant pay $30 for carpet cleaning and utilities from January 15, 1997 through January 31, 1997.

February 14, 1997 - Roger Cox & Associates Vice President Brian Anderson sends letter to Tenant with enclosed copy of Statement of Deposit Accounts. Anderson claims that Tenant maintains a balance of $473.36 for rent and cleaning, etc. Anderson states that Tenant has thirty (30) days to remit the amount or the matter will be turned over to the credit bureau. Tenant responds that he posted the amount in full with the Metropolitan Court on January 22, 1997.

April 1998 - Tenant notified that he maintains a negative credit report related to a collection in the amount of $473.

June 1998 - Tenant notified that he maintains a negative credit report related to a collection in the amount of $473.

July 9, 1998 - Since tenant is attempting to buy a home, he send faxed letter to Roger Cox & Associates Vice President Anderson asking that the negative credit item be removed from his credit history. This item is preventing the continuation of the loan process. Anderson returns a telephone call.

July 10, 1998 - Tenant sends second letter asking for a solution.
July 14, 1998 - Tenant sends third letter asking for a solution.
July 16, 1998 - Tenant sends fourth letter asking for a solution.
July 21, 1998 - Mortgage company declines loan request due to delinquent past credit related to the $473.
July 24, 1998 - Tenant sends letter asking for formal offer of settlement in writing.
July 24, 1998 - Attorney for Roger Cox & Associates, Randall Thompson, submits a written copy of the terms of his client's offer. Conditions are as follows:

(1) Execute a Stipulated Order providing for the dismissal of the appeal and disbursing both bonds amounts to my client,

(2) Execute a mutual release of claims providing for the mutual release of my client's claims against you and any claims you think you have against my client, and a stipulation by you to cease and desist from communicating to any third party any further defamatory remarks about Roger Cox & Associates, Inc. and Netherwood Village,

(3) Upon filing of the Order dismissing the appeal and directing that both bonds be disbursed to my client, I will draft a letter to the mortgage company you have indicated has declined financing on the house you wish to buy. The letter will state that you have satisfied the outstanding Judgment and all rent claims due and owing to Roger Cox & Associates, Inc. and Netherwood Village.

Thompson further stated that Tenant still owes his client $1,866.22 plus interest at the statutory percentage rate from January 21, 1997 until paid in full, plus the additional damage deposit deductions items reflected on the Statement of Deposit Accounts mailed to you on February 5, 1997. These deductions totaled $473.36.

Thompson stated that he had agreed to settlement terms in mid-April 1997. He lists the conditions as:

(1) the appeal bond ($1,351.22) would be disbursed 75% to my client and 25% to you,

(2) the appeal bond for rent due and owing ($515.00) would be disbursed to my client,

(3) you would execute a mutual release releasing any and all claims you thought you had against my client, and agreeing to cease and desist from making any further written communication to third parties concerning my client and Netherwood Village, and

(4) the appeal would be dismissed with prejudice.

July 27, 1998 - Tenant writes to Anderson that he will not give up his First Amendment rights to free speech and that he will not consent to the release of mutual claims.

Present day - this dispute has not been settled.