Breaking lease over barbecue smoke

Rent it Right

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Sep. 15, 2011

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Rent it Right

Janet Portman
Inman News™

Q: I rent an apartment in a large complex. My lease prohibits "outdoor cooking of any kind" except in the picnic areas near the pool and children's play areas. But this provision is routinely ignored by residents, many of whom have small barbecues on their patios and terraces. I happen to live in the middle of some very serious grillers, and I am really bothered by the smoke. How can I get management to enforce this clause? --Barb H.

A: Let's assume that your neighbors' leases have the same prohibition against outdoor cooking as yours does. Let's also assume that you have complained about the situation, both to management and to the neighbors, but to no avail.

Your ability to insist that management enforce its no-cooking provision is rather weak, unfortunately. Unlike a lease clause that prohibits illegal activity on the premises, this clause is more like a noise prohibition -- one that attempts to regulate otherwise lawful activities that, if taken to extremes or engaged in by large numbers, create difficult or unpleasant conditions.

Sometimes these activities rise to the level of a legal nuisance -- an activity that makes it impossible or nearly impossible for neighbors to use or enjoy their homes -- and at that point, neighbors may be able to get law enforcement involved.

But practically speaking, these extreme responses are appropriate only when conditions have become intolerable -- think of constant all-night parties, or a car-repair business operated nights and weekends. Occasional smoke from a barbecue may not make the cut.

This is not to say that you have no options, however. You're entitled to the benefit of the propertywide prohibition on outdoor cooking contained in your lease, and if management is not willing to enforce its rule, you'd have a good argument for breaking your lease and moving out without responsibility for the remaining months of rent.

You'd argue that the promise of a smoke-free environment was an important part of the lease for you, and that had you known that the rule would not be enforced, you would not have rented at this property.

As long as you could prove that the rule was regularly ignored by sizable numbers of tenants, and that the smoke did indeed inundate your rented space, you'd have a pretty good shot at avoiding any claim for future rent.

Your best bet might be to find out if other non-grillers at the property are similarly upset. Management might respond to complaints by a group -- especially a group that threatens to move out en masse.

But short of that, you may have to face the fact that because there are more residents who like grilling than those who don't, management has decided to please the majority. Management would be wise to amend its leases for new tenants, so as to avoid disappointments like yours.

Q: I'm dealing with a very unhappy apartment applicant who thinks she should have gotten the unit. I accepted her application and approved it (but didn't contact her), then decided to accept a few more. I ended up renting to someone who applied after she did. She thinks that because her application was approved, she should have gotten the rental -- "first come, first served." Is there any legal basis for her argument? --Peggy S.

A: Unless your ad specified that the first acceptable applicant would get the rental, or you made that promise during the application process, you're under no legal obligation to rent to that person.

You'll need to be careful, however, how (or whether) you communicate with applicants who have met your criteria. If you let them know that they "passed," and give them reason to believe that a formal offer to rent is just around the corner, you may find that applicants will conclude that they will get the rental.

Applicants who act on this reliance -- by stopping their housing search, or turning down a less attractive place -- will be in a bad spot when they learn that your rental is not to be. They'll be upset and may demand that you compensate them for the losses they suffered.

Legally speaking, they have a case only if a reasonable person in their shoes would have concluded that the offer was a sure thing; and only if the steps they took were justified based on their assumption that you'd rent to them.

Most landlords like to have a number of acceptable applications before making a decision. Invariably, some rise to the top, and they're not necessarily the ones that came in first.

To make your process clear to applicants from the start, you might consider letting them know that you'll evaluate applications as they come in, but choose the best-qualified applicant from among the entire batch. That way, you make it hard for anyone to claim that they will enjoy a preference if their paperwork comes in first.

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