I’m fed up with the second hand smoke in my building, what can I do about it?

by Amara Amy Digital Marketer

So, you’ve moved into your dream apartment, got settled in, maybe lived there a few years. Then one day, a smoker moves in next door.

“Fine,” you say to yourself. This is New York, they are free to be who they want to be. Plus, I signed up to live in a city where people live on top of people.

But what happens when the smoke seeps into your apartment, your clothes, your hair?

Can I make this stop?

Aside from being a major annoyance, secondhand smoke can cause significant damage to your health and wellbeing. Obviously, the best way to guard against this from happening to you is to find an apartment building that has a smoke-free policy, but sometimes that’s not a realistic option.

Your first step: discuss the issue politely with the offending neighbor. It is always best to try to resolve things cordially. Ask them to follow the Golden Rule: love me as you love yourself—take it outside. If the smoke is coming from outside your window, see if they’d be willing to smoke somewhere else.

If that doesn’t work,you will have to ask your landlord to tighten up the ventilation system by sealing up the parts that allow the smoke to enter your apartment.You could also ask to be relocated to a different apartment if that’s suitable to you. Whatever you do, make sure to document all your interactions with your landlord, as well as their responses. You never want to go to court empty handed.

If all else fails, here’s the law:

Your lease probably contains language about the “warranty of habitability” or “quiet enjoyment” of your apartment. Even if you don’t have a lease, the law implies a warranty of habitability to provide you with protections to force your landlord to make necessary repairs and provide essential services. Under the law, your landlord is required to protect you against acts of third parties.

The law sees secondhand smoke the same way it sees chemical fumes, water leaks, and extreme dust penetration. Why? Because they are all health hazards. As a result, secondhand smoke can be grounds for a constructive eviction. To prove that you were constructively evicted, however, you are going to have to show that the smoke is significant and pervasive. You could not breathe because of the constant smell of a burning cigarette.

If your landlord fails to take action to fix the constant secondhand smoke, you might be able to break your lease early. Of course, your landlord will bring you to court, but they better have good evidence that they took actions to eliminate or alleviate the smoke, because if they don’t, your defense that your landlord violated the implied warranty of habitability and caused a constructive eviction may very well win.

If you choose to stay and fight your landlord, then even if the Court doesn’t believe that you were constructively evicted, it might grant you an abatement on your rent (a reduction based upon the harm that you have endured). The amount of the abatement is a highly fact-specific question, so we cannot answer the question of “how much?”

Also, if you are disabled, you may have additional protections under federal and state laws if you can demonstrate that you are very sensitive to secondhand smoke.

Are you sick (literally) and tired of secondhand smoke invading your apartment? Has your landlord failed to address the problem?We here at Outerbridge Law can help you negotiate with your landlord, or fight for you in court, because you have a right to a smoke-free home. Contact us today for a consultation:

Outerbridge Law, P.C.

(212) 364-5593

contact@outerbridgelaw.com

www.outerbridgelaw.com