Can I sue my landlord for smoke damage to my apartment that is causing my son difficulties in breathing?

There was a fire next door to me, literally 3 ft away, and my 4 month old son was exposed to a great deal of smoke while we were trying to get away from the fire. Afterwards my apartment smelled like smoke and my son has been coughing and is having difficulty breathing. I plan to get him checked out tomorrow.

Asked on March 20, 2016 under Real Estate Law, Florida

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

You cannot sue the landlord (such as for medical costs or lost wages) unless the landlord was itself at fault in causing the fire; liability is, as a general matter, based on fault. (You may, however, be able to sue the next-door tenant if he/she was at fault in causing the fire, such as by leaving a pan unattended on the cooktop, or starting a fire with a careless cigarrette.)
If your unit is uninhabitable now and the landlord does not correct the problem (i.e. do something about the smoke) within a reasonable time after having receiving written notice from you about the issue, you may be able to termninate the lease without penalty (i.e. move out without owing money for the balance of the lease term) due to the violation or breach of your "implied right of habitabilty"--the right to have leased premises which are safe and fit for inhabitation. It is recommended, however, that you consult in some detail with a landlord tenant attorney before doing this.


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