Tenants' rights: ETS (Environmental Tobacco Smoke)

[WEXTCHEXT]

Maybe others can input about similar situations; here is mine- with some questions.

I rent in Westchester through a federal subsidy. I just moved into a new apartment, a fairly large apartment complex, at the beginning of the Summer. A couple of months ago, I wrote the management; both thanking them for the apartment and informing them of a problem.

The problem is that the tenants below mine chain smoke and my apartment is constantly filled with second-hand smoke. Not just a smell, but a constant permeation. I informed them that I just had surgery and was recovering from a serious illness and cannot be subjected to the conditions outlined.

Although I didn't cite these following specific details in the letter; as a non-smoker I constantly have the taste of cigarette smoke in my mouth and my throat, lungs and chest hurt. Even more significantly; I am freaking out over the possibility of acquiring further health problems from this!

I requested some sort of compromise where the downstairs tenants would reserve a small part of the apartment for not smoking/resulting in clean air above in my apartment for that reserved section.

With no response a couple of months later - I spoke with someone from the management office by phone, who informed me that the smoking tenants were contacted.
I informed him that the conditions still persisted. He suggested that I talk to the tenants myself, (something that I stated in the letter that I wanted to avoid).

He said that, if speaking to the tenants didn't solve the problem - for me to simply give the management proper notice and find another place to live.

I requested of the Housing Authority, (who coordinate the lease process and pay part of the rent), information regarding withholding of rent from a landlord. I was told that they cannot withhold their portion of the rent without a court order. I was cautioned that if I withhold my portion of the rent; the landlord may evict me.


Hopefully, someone can give me a bit of insight into this type of situation, as these are my questions...

)) Isn't this a clear violation of the implied Warranty Of Habitability? (It is a detriment to my health).

)) Should the fact that the tenants are enjoying their activity (smoking) have any bearing on the by-product that is being distributed into my environment?

)) What if the tenants, instead, enjoyed playing with a motorized machine that constantly spewed carbon monoxide into my apartment? (Which cigarette smoke actually contains.) How would that (hypothetical situation) be any different?

)) If I, in fact, had to move; should the landlord pay any related costs like a realtor's fee (how I found this place) or moving costs?


I could see how someone reading this might just suggest for me to move out as the simplest solution - but I just went through a lot to find this place and move. Besides, I like the apartment.

And, to clarify, I am just looking for clean air -- not a major legal endeavor.

Any input would be appreciated.

[cardinalfang]

I could see how someone reading this might just suggest for me to move out as the simplest solution - but I just went through a lot to find this place and move. Besides, I like the apartment.

And, to clarify, I am just looking for clean air -- not a major legal endeavor.

Unfortunately, if you are not interested in pursuing litigation that may well have little chance of success, moving to a new apartment with your section 8 voucher (I assume) may be far easier and have a more predictable outcome. There is very little case law to the effect that tobacco smoke from another apartment within a multiple dwelling constitutes a violation of the warranty of habitability. One decision issued by a New York City Housing Court Judge about a year ago (Poyck v Bryant, 13 Misc 3d 699 [Civ Ct, NY County 2006, Hagler, J.]) did find that secondhand smoke could potentially give rise to a violation of the implied warranty of habitability, and therefore denied the landlord's motion for summary judgment dismissing the defense raised by the tenant. There are no binding precedents from an appellate court that directly support the argument, however.

[WEXTCHEXT]

cardinalfang

Unfortunately, if you are not interested in pursuing litigation that may well have little chance of success...

I would be willing to litigate. I just wanted to state that my intent in this situation is not to collect monetary damages - rather just to have a healthy environment. (In other words, I wasn't posting for legal advice for a personal injury lawsuit.)


I am peeved that I made a request; the management spoke with the tenants...the tenants ignored the request...and the management is acting like the tenants are some unstoppable, random force that they have no control over.

I find it interesting, because the day I moved in, I was escorted by the superintendent to my apartment...
Before letting me in, he paused in the hallway to sternly lecture me how the tenants, (the ones below mine who turned out to be heavy smokers), "don't like noise" and warned me that I better not be a loud tenant or it wouldn't be tolerated.
(This was not directed at some knowledge about me, rather it was voiced to relate that past tenants were nuisances regarding noise.)

So, the management does actually realize that a tenant's behavior does have an effect on other tenants. I just wish the superintendent could have that much gusto in confronting the smokers.

It really wouldn't take much to coordinate something so that they could still smoke while I could have a safe area to live. The problem is that the tenants want the right to smoke wherever they want.

I could see how someone might feel they have a right to do that in their own apartment. But, if your told that you're really affecting other people - does it really take that much effort?

[dealing3000]

I feel for your situation as I also hate any type of smoke. Unfortunately second hand smoke falls in between the lines of breaking your habitability. As was pointed out before, there is little precedent that you could use when using litigation. Landlords are interested in one thing, collecting the rent. As long as the tenants below you pay their rent then most LLs of larger buildings will just let almost anything go. Smoking in one's apartment is perfectly legal and the fact that it makes its way to your apartment above is an unfortunate consequence. The LL would have very little leg to stand on if they tried to kick them out over this and would it be really worth it for them? Not likely. They will just ignore you until you move out.

I will give you blunt advice. Your only options as I see them are this:

1- Wait it out and suffer (LL ignores requests as do downstairs tenants)
2- Move and suffer costs associated with this
3- Bribe super to do something about this (possibly talk to tenants and threaten them)
4- Fight fire with fire - Be as stinking loud as you want to be at ANY and ALL times - they will find it just as hard to prove noise issues as you do smoke issues. Maybe a little of their own medicine will get through to them. I give this option last since I think that the likelihood that you can get most likely life long smokers to change their smoking habits is close to ZERO. This could also start a war with your tenants so proceed with caution. However, if you don't/can't afford moving then this may be your only chance of success, slim as it is.

I wish you the best of luck in this difficult situation.

[WEXTCHEXT]

I will give you blunt advice. Your only options as I see them are this:

1- Wait it out and suffer (LL ignores requests as do downstairs tenants)
2- Move and suffer costs associated with this
3- Bribe super to do something about this (possibly talk to tenants and threaten them)
4- Fight fire with fire - Be as stinking loud as you want to be at ANY and ALL times - they will find it just as hard to prove noise issues as you do smoke issues. Maybe a little of their own medicine will get through to them. I give this option last since I think that the likelihood that you can get most likely life long smokers to change their smoking habits is close to ZERO. This could also start a war with your tenants so proceed with caution. However, if you don't/can't afford moving then this may be your only chance of success, slim as it is.
I wish you the best of luck in this difficult situation.

Thank you for the reply.
I cannot begin to tell you what I went through in finally finding and moving into this (very decent) apartment...

If I can swing some funds - your idea about bribing the super might be worth a shot -- maybe I should just offer the neighbors money: $50 a month for one smoke-free room??


I actually did think about intentionally making noise. I am extremely hesitant to try something like this - I really don't want to have a feud. The irony is that, even though the persons live below, they are unusually loud. But it's tolerable - because they pretty much stop at a certain point at night.

The issue about noise with them is that one of them goes to sleep and wakes up very early.

What I would like to do, but don't have the nerve to, is request a face to face meeting with someone from management at their office. I would bring along a couple of "legal advisors" with me. (Who would actually be two smokers: one who would light up a stinky cigar, the other a stinky pipe.)

I would love to see the reaction and if they would be asked to distinguish the smoking materials. And I would be like, "Why...does it bother you?"

But that type of thing is not really worth it because the bottom line, as you mentioned, is they only have tunnel vision about money.


More seriously, I will probably be seeking legal advice soon.

[WEXTCHEXT]

I would just like to add that NY States Warranty Of habitability states:

Tenants are entitled to a livable, safe and sanitary apartment. Lease provisions inconsistent with this right are illegal. Failure to provide heat or hot water on a regular basis, or to rid an apartment of insect infestation are examples of a violation of this warranty. Public areas of the building are also covered by the warranty of habitability. The warranty of habitability also applies to cooperative apartments, but not to condominiums. Any uninhabitable condition caused by the tenant or persons under his direction or control does not constitute a breach of the warranty of habitability. In such a case, it is the responsibility of the tenant to remedy the condition. (Real Property Law §235-b):

If it came to the point where I had to claim a breach of contract, I would cite the very first line; "Tenants are entitled to a livable, safe and sanitary apartment."

My apartment is not livable...it is definitely not safe...and it is clearly not sanitary.

On the EPA's website, they confirm that second hand smoke is a serious health risk; citing "4000 compounds" in the smoke.


Smoke eaters, although anywhere from $1000 to $2000 apiece and up would solve the problem.

Right, I know it's an expense - but so is any other serious decontamination process.


Thank you - I hear what the posters are saying - I just wanted to add this.

[cestmoi123]

I hate to be the bearer of bad tidings, but you're between a rock and a hard place here.

If the smoking is bad enough, you likely have a case to terminate the lease and move to another apartment.

It sounds, however, like you want the landlord to tell the tenants below you to either stop smoking or leave, and that's extremely unlikely to happen, unless for some reason the LL is much more interested in keeping you than the people downstairs as a tenant, since it really looks like it will come down to you or them. In this fight, I think you lose.

[WEXTCHEXT]

It sounds, however, like you want the landlord to tell the tenants below you to either stop smoking or leave, and that's extremely unlikely to happen, unless for some reason the LL is much more interested in keeping you th

Actually, I didn't think of that scenario at all...

What I really want is to stay and work out some compromise where the neighbors can blow their brains out with smoke somewhere (not everywhere) in their apartment and I can have part (not all) of the apartment smoke- free.

But this requires communication and willingness which is obviously lacking.

I am willing to examine the possibility of leaving if this continues throughout the fall season...