Trammell Crow Residential & BCRE Palm Valley LLC, Alexan Palm Valley Apartments Landlord did not disclose health risk Round Rock, Texas

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.
http://www.bostoncapital.com/about/20100412.html

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).