I moved into what I was told a non-smoking building

UPDATED: Oct 1, 2022

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I moved into what I was told a non-smoking building

The ventilation systems are connected, central air, etc. After being told it was a non-smoking building, there are three smokers on my floor who continue to smoke, especially when the manager is not here. Which is most of the time. I have lung problems, specifically asked if it was non-smoking. These people are making me really sick with lung inflammation, in the hospital on steroids etc. What can I do? Can I sue them? I would never have moved in here if I knew there were people smoking and that the ventilation systems were connected. It’s horrible.

Asked on September 3, 2017 under Real Estate Law, New York


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

There are two grounds that *may* let you get out of the lease and move out without penalty, but they have risks; neither is guaranteed, and because there are elements of subjectivity to them and/or issues about what could be proven, it is possible that, were you to move out and the landlord to sue you for unpaid rent, that a judge could find against you and require you to pay the rest of the rent due under your lease for its full remaining length.
Before taking either step, you have to give your landlord written notice of the smoking issue and a reasonable chance to take action against tenants who are violating building policy and/or causing what are essentially health concerns or habitability issues. If you don't give your landlord written notice and a chance to take action, you will lose if the landlord comes after you for rent after you move out early; landlords always get a chance to correct the situation.
1) Fraud: if the landlord lied to you about the building being non-smoking to get you to rent, that may be fraud, and that fraud could provide a basis to void the contract/lease and move out. If you have written promotional or marketing materials showing the building marketed as non-smoking, you should be in good shape to prove this if necessary; but if all you have is your statement about what the landlord orally told you, proving that in court may be very difficult.
2) Habitability or quiet enjoyment impairment: a landlord is obligated to provide space which may be safely inhabited and which you can "enjoy" without undue disruption. Excessive smoke infiltrating your unit can violate one or both of these obligations and allow you to terminate your lease early. But it must be excessive by the standards of the average reasonable person without lung problems; the law does not take into account or hold the landlord accountable for your specific health issues. If you can't prove the smoke is excessive by the standards of the average, reasonable person without lung issues, you would lose and be held liable for your rent.

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