78B-6-1106. Rental units --
Tobacco smoke.
(1) There is no cause of action for a nuisance under
Subsection 78B-6-1101(3)
if the rental, lease, restrictive covenant, or purchase agreement for the unit
states in writing that:
(a) smoking is allowed in other units, either
residential or commercial, and that tobacco smoke from those units may drift
into the unit that is subject to the agreement; and
(b) by signing the agreement the renter, lessee, or
buyer acknowledges he has been informed that tobacco smoke may drift into the
unit he is renting, leasing, or purchasing, and he waives any right to a cause
of action for a nuisance under Subsection 78B-6-1101(3).
(2) A cause of action for a nuisance under Subsection 78B-6-1101(3)
may be brought against:
(a) the individual generating the tobacco smoke;
(b) the renter or lessee who permits or fails to
control the generation of tobacco smoke, in violation of the terms of the
rental or lease agreement, on the premises he rents or leases; or
(c) the landlord, but only if:
(i) the
terms of the renter's or lessee's contract provide the unit will not be subject
to the nuisance of drifting tobacco smoke;
(ii) the
complaining renter or lessee has provided to the landlord a statement in
writing indicating that tobacco smoke is creating a nuisance in the renter's or
lessee's unit; and
(iii) the
landlord knowingly allows the continuation of a nuisance under Subsection 78B-6-1101(3)
after receipt of written notice under Subsection (2)(c)(ii), and in violation
of the terms of the rental or lease agreement under Subsection (2)(c)(i).
Enacted by Chapter 3, 2008 General Session