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Tenant Allowed to Break Lease Over Neighbor’s Cigarette Smoke

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I just read a news story that definitely made me take pause.  Apparently last week, a judge in New York allowed a tenant to move out of her apartment before the expiration of her lease, including relieving her of her obligation to pay her full rent.  Why, you ask?  Because the tenant was upset by her neighbor’s cigarette smoke! 

It’s a bit startling to me, because as a kid growing up in the 1970’s I saw cigarettes everywhere – public schools, places of employment, town meetings, restaurants, and even churches.  Now, apparently you can’t even smoke in the privacy of your own home without something bad potentially happening.  I do not smoke, nor have I ever, but still the concept seems slightly unjust.

Anyway, back to the main story.  The judge determined that the landlord failed to react to the tenant’s complaints regarding passive smoke entering her apartment from the downstairs unit.  The reason the tenant was allowed to break the lease is that the apartment building’s standard leases banned second-hand smoke and gave the landlord eviction rights for any tenant creating the puffy vapor.  Since the landlord did not evict the puffing tenant, he in fact was deemed to have broken the lease. 

Here is a quote that exemplifies the heart of the judge’s ruling on the case: “When a tenant’s smoking results in an intrusion of secondhand smoke into another tenant’s apartment, and that tenant complains repeatedly, the landlord runs a financial risk if it fails to take appropriate action. This case involves such a situation.”

The article also mentions a couple of similar cases currently pending in the New York judicial system.  The moral here is that as an income property landlord, you should not take the second hand smoke created by one or more of your tenants lightly.  Understand the landlord-tenant laws in your state, and address any potential problems as soon as you become aware of them.  When  in doubt, get yourself a real estate attorney for any potentially sticky situations.

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