Court Says Okay for Tenant to Break Lease

by Chris on February 21, 2011

Last week a judge in New York told a tenant that she could break her lease and pay reduced rent because she was bothered by her neighbor’s cigarette smoking.

This ruling is important for other landlords to note, because it sets a precedent that likely will be followed by other judges.

The court found that the landlord did not take appropriate action to address the tenant’s complaint that secondhand smoke was infiltrating her apartment from the downstairs neighbor.

According to a report by Tobacco.org, the building’s tenants were subject to a lease addendum that prohibited secondhand smoke, and that purportedly would have allowed the landlord to evict the smoking tenant for nuisance. Despite complaints by the nonsmoking tenant over the course of months, the landlord did little more than caulk the air vents to the¬†unit. The court found this action did not go far enough, and the failure to act justified the tenant’s breaking the lease and moving out.

The lawsuit was initiated by the landlord after the tenant left with about $12,000 still remaining on the lease. Because the tenant stopped paying rent two months before she moved out, she was ordered to pay a portion of the rent, but was relieved from any liability for rent after she felt she had to move out.

The court ruling states, “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.”

In another case in New York City, tenants are suing their cigar-smoking neighbor for illnesses they claim came from secondhand smoke. The family says they may be forced out of their upscale apartment if the tenant won’t give up his habit. They are asking for $2 million in damages.

This post is provided by Tenant Verification Service, Inc., helping landlords reduce the risks of renting with fraud prevention tools that include Tenant Screening, Tenant Background Checks, (U.S. and Canada), as well as Criminal Background Checks, and Eviction Reports (U.S. only).

Click Here to Receive Landlord Credit Reports.

Disclaimer: The information provided in this post in not intended to be construed as legal advice, nor should it be considered a substitute for obtaining individual legal counsel or consulting your local, state, federal or provincial tenancy laws.

{ 3 comments… read them below or add one }

Bridgette Galbreath February 22, 2011 at 8:06 am

Wow, very interesting. I now have a “no smoking” clause in all of my leases to avoid such a case. Good information.

Jim Delperdang February 22, 2011 at 11:54 am

I have to agree with the tenants (and the court) on this one. If you have a clause which prohibits smoking and a neighboring tenant in a lease complains and you don’t do something to enforce the rules you deserve to lose the complaining tenant.

ray February 23, 2011 at 6:53 pm

This is joke
I have properties in the bronx I can not even stop tenents from smoking pot no less cigerettes. I have called the police they come knock on the door and walk away. I call my atty she said go to court and give $1200.00 and I have to prove where the smoke is coming from. I have done letters etc forget about it. The courts in the bronx are so pro tenent it ‘s a joke.I cannot even collect rent arrears one judge said my arrears were stale meaning 2 old (6 months worth) it took close to 3 months to get in front of the judge, 10 day demand, get section-8 appoval 30 days, petition for court 30 days.
45 days (tennat went for a extention)

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