Do I have grounds to break my lease?

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Do I have grounds to break my lease?

I recently signed a lease for an apartment unit that is in a house that has been converted. Upon signing the lease, I was required to sign a no smoking addendum that says smoking is not permitted within 25 feet of the entrance to my unit, any windows, or air vents. The problem is, my neighbors smoke both cigarettes and what

smells like marijuana, and it gets into my apartment if I open my heating vents. I talked with the management company, who encouraged me to talk to my neighbors, but also said they would speak to them too they said that they moved in before the smoking addendum was added and that the building was not deemed a no smoking

building. In the addendum I signed, it said that a breach of the addendum would be a beach of the lease. Does that goes both ways, since the management is breaking their own addendum by allowing the tenants to smoke in their apartment beneath me?

Asked on October 31, 2016 under Real Estate Law, Indiana

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

Whether or not your neighbor's smoking is a breach of the addendum and hence lease depends on exactly what it says. If the addendum basically guarantees you a smoke free environment, then yes, this may be a material (important) breach that would allow you to terminate your lease without penalty. But if it does not address your rights but only talks about how *you* (or the "Tenant" signing the addendum--that is, you) will not smoke, then it does not guaranty you a smoke free environment; it only prohibits you smoking. In that case, the neighbor smoking is not  a breach of your lease, and hence not grounds to terminate the lease, since you are not being guaranteed an absence of smoke. If you are unclear about exactly what the addendum says, consult with a landlord-tenant attorney about the situation--the lawyer can review the wording with you, which is critical since leases and other  contracts are governed by their exact wording. Also, discuss the timing (i.e. when and how often during the day), amount, intrusiveness, etc. of the smoke in detail with the lawyer: it is possible that IF the smoke is bad enough, and the landlord refuses to take action (if, under the circumstances, it *can* take action) to prevent or mitigatet the problem, that this is a breach of the "implied warranty of habitability" and would let you terminate your lease. That determination, however, is very case-by-case; you want to discuss the matter in detail with a lawyer.


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