landlord varnished apartment below me, I can’t stand the smell, can I withhold rent until smell dissapates?

UPDATED: Sep 30, 2022

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landlord varnished apartment below me, I can’t stand the smell, can I withhold rent until smell dissapates?

I came home yesterday, and to my dismay the landlord had varnished the floor in the apartment below me. The smell is REALLY strong, and I had to get my cats and my fiancee and myself out of there. I have not been there in a day now, and if the smell persists for as long as 21 days according to what I’ve read do I have a right to withold rent until the smell dissapates to what I consider an acceptable level?

Second Question related to the first As it is a direct result of the first If someone breaks into my apartment while I am not there because of the smell using the open windows and steals some of my belongings, is the landlord cupable for the value of the products stolen, since his actions were a direct precursor to my valueables being stolen?

Asked on October 29, 2016 under Real Estate Law, Michigan


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

1) IF the smell is truly, to the average reasonable person (not just to someone who may be more sensitive to it) so bad as to render the unit uninhabitable AND you have given the landlord written notice of the issue and a reasonable amount of time after notice to cure or fix the problem and he does not (or can not), then at that time, you may withhold rent for uninhabitability. Of course, the landlord may disagree and may try to sue or evict you for unpaid rent; have the rent available (don't spend it), since if you go to court and a judge feels that the smell was tolerable, you will be forced to pay. Or to put it another way: uninhabitability is a legal reason to not pay rent, but whether a unit is uninhabitable is generally a subjective determination, so if litigation ensues, you are not guaranteed to win.
2) No: if you vacate your unit while leaving it unsecured, even for what you deem good reasons (e.g. to let a smell disapate), that is *your* action, your negligence, and your responsibility, not the landlord. It is unreasonable to leave windows open in a vacant unit. You need to leave the unit secured if you are not there.
a) Further, if you vacate the unit while leaving the windows open and damage is therefore caused to the unit or the landlord's building (e.g. rain gets in and wrecks a floor or wall), you would be liable for the repair costs.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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