Skip rent when secondhand smoke persists?

Rent it Right

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Apr. 1, 2011

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Rent it Right

Janet Portman
Inman News™

Q: I live in an apartment building that I thought would be zealous in protecting me from secondhand smoke. My lease has a clause in which I acknowledge that secondhand smoke is a legal nuisance, and I promise to make sure that no smoke from me or my guests infiltrates common areas or other tenants' apartments.

Several months ago, I began getting smoke in my unit from a neighboring tenant. Management's attempts over the past four months to stop it failed, so I asked to be moved. The management approved, but required that I sign a new, one-year lease. Since I'm planning on going to school in another city, I couldn't do that -- and I couldn't bear the smoke anymore, so I had to leave.

I didn't pay the last month's rent, and I'm refusing to pay for any of the months left on the lease. Do I have the law on my side? --Dan C.

A: To management's credit, they have recognized the dangers of secondhand smoke in a multifamily rental, and have made it clear that tenants bear some responsibility to keep their personal smoke from bothering others.

It suggests to tenants not only that they must follow the rule, but also that management will take reasonable steps to make sure that smoke from other people will not bother tenants.

Management seems to have dealt with your neighbor's smoke appropriately, at least at first. I imagine they tried to caulk any cracks that might have allowed smoke to move into your space, sealed vents in the smoker's unit, and perhaps even placed gaskets around light-switch plates to prevent smoke from entering the walls. But even with Herculean efforts, sometimes smoke just, well, gets in your eyes.

What happens then?

Your suggestion that you move to another unit is a reasonable next step. But putting conditions on that move -- that you commit to another yearlong lease -- was arguably not reasonable, and it had the effect of punishing you for legitimately exercising your right, under management's own lease, to live smoke-free. This unreasonable response entitled you to exercise your only remaining option: to leave.

By acknowledging that secondhand smoke is a legal nuisance, management implicitly admitted that tenants may use any number of tried-and-true responses if management doesn't make reasonable efforts to get rid of it. (Even without an explicit acknowledgment like the one in your lease, once a condition rises to the level of a legal nuisance, tenants can respond accordingly.)

The appropriate response will vary from state to state, and sometimes from city to city, but almost everyone will have the option to move out without liability for future rent.

The legal name for this option is "constructive eviction." In essence, it means that although management has not deliberately locked you out, moved you out, or done anything else that intentionally deprives you of the use of your rental, their actions (or inactions) have amounted to the same thing: They have made it impossible for you to safely or comfortably continue living there.

This notion is age-old, and from the sounds of things, you invoked it properly, after giving management ample opportunity to remedy a serious problem.

A situation remarkably like the one you describe was recently considered by a trial court in New York (Upper East Association v. Cannon). The judge not only excused the tenant from liability for future rent, but he also retroactively abated the rent the tenant paid to live with secondhand smoke after having complained to management. In other words, the judge recognized that the tenant wasn't getting what she paid for (a smoke-free unit), and reduced the value of the unit accordingly.

For the first month, the judge figured the value of the unit was 10 percent less than the stated rent; for the second month, the value diminished 20 percent, and so on, to 40 percent for the fourth and final month of residence.

Retroactive abatement of rent is powerful stuff. It means that when a problem is brought to management's attention and after a reasonable period of time (to fix the problem), the value of the unit goes down and tenants are justified in asking a judge to give them a credit for living with the problem.

Landlords take note: The faster you deal with serious problems, the fewer the number of months of rent abatement you may face.

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