Can a lease be terminated early due to second hand smoke?

I am a resident of an apartment complex. My lease officially expires in about 6 months but I would like to move out early due to problems with second hand smoke blowing into my apartment. Other residents smoke in the common areas and the smoke blows into my unit. This is against the “house rules” addendum of the lease. I told the management about this problem about 7 months ago but it still continues today. I said that I am leaving in 45 days however they are threatening me with lost rent, lost commission, etc. Can I legally terminate the lease?

Asked on October 8, 2011 under Real Estate Law, California

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Maybe.  What you state as being part of the lease agreement seems to indicate that you may have a basis for a breach of contract claim and a breach of your right to enjoyment of your apartment. You should consider documenting any physical problems that the smoke causes you and getting a  note from a doctor as to same may indeed help.  The law prohibits interference with your right to be free from noxious odors that seep in to your apartment.  And that the landlord allows a breach of the lease agreement by the tenants thus causing the problem is enough I think for you to ask the court to declare your lease void and your obligations no more.  Good luck.


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