By Robert Griswold
Question: My children and I live in an apartment. The tenant below us smokes so much that it is coming through the shower exhaust into our apartment. I can't leave the windows open in the front or back of the apartment because the whole unit smells of smoke if I do. Can I break my lease due to a health hazard or insist on being moved to a different unit?Tenants' attorney Kellman replies:
Smoking is a lawful activity in most areas; however, there is more legislation every day to limit the rights of smokers. Since the places to smoke are becoming more and more restricted, the last place of refuge for the smoker is in the home. But even there, the smoker is under attack. The right to breathe clean air is making great strides against the personal right to smoke. Landlords complain about the damage smoking residue can cause to the interior of the rental, and non-smoking neighbor tenants do not want to smell or breathe the smoke. Secondhand smoke is claimed to be as dangerous as smoking.
A tenant who smokes faces increasing pressure to protect others from being harmed or annoyed by the smoke, but it is unclear if that neighbor who smokes "so much" is doing anything wrong. How much is too much? Is it the smoker's fault or is it a problem with the building's ventilation? Regardless of the answers to these questions, you should not be forced to breathe that smoke. Since the situation appears to be significant, you should report the matter, in writing, to the landlord. Once notified of the problem, the landlord should take corrective action either with the neighbor or the building. If the landlord fails or refuses to handle the matter, you may request to be moved to another unit. If the landlord will not cooperate, you may choose to assert your right to declare the landlord in breach of the lease, move out and sue the landlord for damages. Get legal advice before taking this action because if you move out without protecting your rights, you may be held liable for damages for breaching the lease.
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