Page 1 of 2 1 2 LastLast
Results 1 to 10 of 16
  1. #1
    Join Date
    Jul 2013
    Posts
    7

    Default What Can a Tenant Do About Cigarette Smoke from Unit Below

    My question involves landlord-tenant law in the State of: New Jersey

    My problem: smokers in unit below mine, smoke travels up



    Did what I could to plug every spot I could find but it's impossible to stop the smoke from infiltrating my apt.
    It even comes up through/ along side the plumbing pipes.

    Landlord is nonchalant, perhaps thinks time will take care of it: I'll either move or live with it.
    Can't comprehend why he is not taking steps to protect his property. The smoke is bad news for the unit.
    Landlord's lawyer says smoke is not a nuisance (what???).
    Landlord is phasing-in a smoke-free policy (all new tenants' lease prohibit it) but says can't do it to current residents even with notice. Is it correct?



    Offending party says they have the right to smoke since their lease doesn't prohibit smoking in the unit and refuse to stop or be relocated.



    Can the landlord effect a lease-amendment because of this situation for an existing tenant?
    Can the landlord terminate their residency with cause based on the info above? If he did and they called his bluff or simply refused to leave, would it hold-up in court in the subsequent suit to evict?


    To me the smoke is a health hazard, a nuisance and violates the warranty of habitability and is a breach of the covenant of quiet enjoyment. Don't know how else I can make this any clearer to the landlord.


    1) What strategy would you use if you were me?
    2) What strategy would you use if you were lawyer working for the landlord with a desire to cure or terminate?
    3) How hard can I push back against the smokers (is pounding on their door at 3 AM when I smell it to confront it legal?)
    4) How hard can I push the landlord without harassing? What if they simply start ignoring my communications?

  2. #2
    Join Date
    Feb 2010
    Location
    CT & IL
    Posts
    5,276

    Default Re: Rental in Nj: Cigarette Smoke from Unit Below

    The smoke does not void habitability .. and your health is likely to be unaffected ...

    If I were you? Put a fan in the window.

  3. #3
    Join Date
    Oct 2006
    Posts
    6,158

    Default Re: Rental in Nj: Cigarette Smoke from Unit Below

    Quote Quoting 2rufls
    View Post
    My question involves landlord-tenant law in the State of: New Jersey

    My problem: smokers in unit below mine, smoke travels up



    Did what I could to plug every spot I could find but it's impossible to stop the smoke from infiltrating my apt.
    It even comes up through/ along side the plumbing pipes.

    Landlord is nonchalant, perhaps thinks time will take care of it: I'll either move or live with it.
    Can't comprehend why he is not taking steps to protect his property. The smoke is bad news for the unit.
    Landlord's lawyer says smoke is not a nuisance (what???).
    Landlord is phasing-in a smoke-free policy (all new tenants' lease prohibit it) but says can't do it to current residents even with notice. Is it correct?



    Offending party says they have the right to smoke since their lease doesn't prohibit smoking in the unit and refuse to stop or be relocated.
    They are correct.



    Can the landlord effect a lease-amendment because of this situation for an existing tenant?
    NO

    Can the landlord terminate their residency with cause based on the info above? If he did and they called his bluff or simply refused to leave, would it hold-up in court in the subsequent suit to evict?
    NO. The landlord can refuse to renew their lease at the end of the lease period, but that is all.


    To me the smoke is a health hazard, a nuisance and violates the warranty of habitability and is a breach of the covenant of quiet enjoyment. Don't know how else I can make this any clearer to the landlord.
    You want something you cannot have


    1) What strategy would you use if you were me?
    I would ask to be moved to another unit.

    2) What strategy would you use if you were lawyer working for the landlord with a desire to cure or terminate?
    I cannot imagine an attorney taking the case at all.

    3) How hard can I push back against the smokers (is pounding on their door at 3 AM when I smell it to confront it legal?)
    That would be harassment and a violation of THEIR quiet enjoyment of their unit.

    4) How hard can I push the landlord without harassing? What if they simply start ignoring my communications?
    Quite frankly, you have already reached that point and they should already start ignoring you. Ask to be moved to another unit.

  4. #4
    Join Date
    Jul 2013
    Posts
    7

    Default Re: Rental in Nj: Cigarette Smoke from Unit Below

    Moving may be the shortest/ quickest "resolution" to my problem but you haven't addressed this part:

    Why isn't the smoke a nuisance in real estate law, or is it?
    Why couldn't the landlord's lawyer use that?
    The lease does prohibit tenants from causing any nuisance, including smell.
    And this is a smell from cigarette smoke + the smoke itself is a health hazard.

    Tenants suffering from Second Hand Smoking have won cases against their landlord in NJ and across the nation.
    My problem isn't with the landlord, it is with these selfish people.
    They are infringing on my rights while exercising their right to smoke. Any decent person would apologize and cease.

    A smoker may not understand how bothered and angered a non-smoker can be when exposed to cigarette smoke with no escaping. Coming home to a smelly apartment? Your closet, the air you breath....


    The lawyer could at least write a letter to them explaining that their cigarette smoke is a direct breach of the covenant of quiet enjoyment, nuisance, and violation of the warranty of habitability I am entitled to.
    Do these mean nothing in reality? Or they do but are not relevant here, then why not?


    As for moving, I am not the one with the useless addiction, the onus is on them to move or cease smoking inside the apartment.
    Besides this does not solve the problem for the landlord. The next tenant in my apartment will suffer from the same problem. My moving won't cure the problem.

  5. #5
    Join Date
    Oct 2006
    Posts
    6,158

    Default Re: Rental in Nj: Cigarette Smoke from Unit Below

    Quote Quoting 2rufls
    View Post
    You haven't addressed this part:
    Why isn't the smoke a nuisance in real estate law and why couldn't the landlord's lawyer use that?
    The lease does prohibit tenants from causing any nuisance, including any sort of smell.
    And this is a smell from cigarette smoke, arguably worse than cooking smells.

    Tenants suffering from Second Hand Smoking have won cases against their landlord across the nation.

    A smoker may not understand how bothered and angered a non-smoker can be when exposed to their smoke with no recourse.


    The lawyer could at least write a letter to them explaining that their cigarette smoke is a direct breach of the covenant of quiet enjoyment, nuisance, and violation of the warranty of habitability I am entitled to.
    Do these mean nothing in reality?


    As for moving, I am not the one with the useless addiction, the onus is on them to move or cease smoking inside the apartment.
    Besides this does not solve the problem for the landlord. The next tenant in my apartment will suffer from the same problem. My moving won't cure the problem.
    Look...smoking is not illegal and their lease does not prohibit them from smoking. Obviously you consider it to be a nuisance, but the fact that you do, doesn't make it legally a nuisance. The landlord CANNOT change the terms of their lease midway through the lease no matter how much their smoking annoys you.

    No matter how much you want it to be THEIR problem, its not their problem, its YOUR problem. Therefore if you cannot live with it, then you are the one who needs to move. If you hate smoking that much you should have moved into a completely non-smoking complex to start with.

  6. #6
    Join Date
    Jul 2013
    Posts
    7

    Default Re: Rental in Nj: Cigarette Smoke from Unit Below

    * I was editing my post for clarification and you quoted the previous version.

    Are you a smoker by any chance?
    You make it sound like it is not normal to dislike cigarette smoke.

    I didn't say smoking is illegal. By the same token, smoking isn't exactly a constitutional right either.

    It is NOT a nuisance in real estate law?
    Then why are tenants winning cases against their landlord?

    Understood, lease cannot be amended. However the lease says the tenant must comply with the rules and policies. Then why not introduce a smoke-free policy?

    They are infringing on my rights while smoking. There has got to be something that can be done to make them stop, no matter how convoluted or how many steps it takes.


    SOMEONE please help me find a strategy.

  7. #7
    Join Date
    Oct 2006
    Posts
    6,158

    Default Re: Rental in Nj: Cigarette Smoke from Unit Below

    Quote Quoting 2rufls
    View Post
    * I was editing my post for clarification and you quoted the previous version.

    Are you a smoker by any chance?
    You make it sound like it is not normal to dislike cigarette smoke.

    I didn't say smoking is illegal. By the same token, smoking isn't exactly a constitutional right either.

    It is NOT a nuisance in real estate law?
    Then why are tenants winning cases against their landlord?

    Understood, lease cannot be amended. However the lease says the tenant must comply with the rules and policies. Then why not introduce a smoke-free policy?

    They are infringing on my rights while smoking. There has got to be something that can be done to make them stop, no matter how convoluted or how many steps it takes.


    SOMEONE please help me find a strategy.
    Ok, let me give you a different example that might make more sense to you....

    Lets assume you hate Opera, and you hate it so much that to even hear it softly drives you crazy. You have a neighbor who plays Opera all the time and you can hear it. That neighbor however plays it softly enough that it doesn't violate any noise ordinances. Therefore, there is nothing you can do about it...because it doesn't violate any noise ordinances. Its YOUR problem.

    Another example: You sleep during the day. Your neighbor has young children that make some noise. They are not noisy enough to violate any laws, but they interrupt your sleep on a regular basis. Again, its not the problem of the parents of the children, its YOUR problem.

    Same thing with the smoking. Its not illegal and doesn't violate the lease.

    And no...a landlord cannot add new rules about what someone can do inside their own apartment during the middle of their lease.

  8. #8
    Join Date
    Jul 2013
    Posts
    7

    Default Re: Rental in Nj: Cigarette Smoke from Unit Below

    And here is how I would react if I were the smoker, opera lover or the parent:
    "I apologize if I caused any type of stress. I wasn't my attention, I am glad you brought this to my attention. I'll be extra careful, smoker: and won't smoke in the apartment/ opera-lover: will use headphones as often as possible and will speak to the landlord about sound-proofing our common walls/ parent: yes I have been teaching my children to not stomp and run wild. Please bear with me and let me know what your schedule is like so I can work around it."

    I would say that and actually do it. Not just promise it and resume my ways a week later.

    Just like that. Because if someone approached me like I approached I'd fell they deserve that and understand my actions have consequences. Remember the entire problem disappears if they don't smoke in the apartment.

    Help understand this: smokers can't smoke on plans or inside the office or in the hospital. They do just fine. So what's the difference then? Don't smoke in the apartment, make a new friends and be a better human being while going through life.
    Why the hell not?




    I am looking for help putting a strategy together to achieve this. I have been polite and patient so far but it is obvious they are addicted and weak + selfish.

    The new rule would obviously be go into effect for the entire building not just that one unit.
    Still not possible?


    I have seen cases where the owner of a building decided no one could have a door mat and forced everyone to remove it (also in NJ). Why is that possible while telling everyone this is not: "this is my building and investment, I wish to protect it and eliminate the health hazard smoking poses. No smoking in the appartment effective XYZ (30 days from now). Anyone objecting to this new policy is free to move-out with no penalty". What if I managed to convince the landlord to do that?



    Also, in the state of NJ, the landlord tells me they have to at least offer the tenant the option to renew.
    Is that correct.

  9. #9
    Join Date
    Oct 2006
    Posts
    6,158

    Default Re: Rental in Nj: Cigarette Smoke from Unit Below

    Quote Quoting 2rufls
    View Post
    And here is how I would react if I were the smoker, opera lover or the parent:
    "I apologize if I caused any type of stress. I wasn't my attention, I am glad you brought this to my attention. I'll be extra careful, smoker: and won't smoke in the apartment/ opera-lover: will use headphones as often as possible and will speak to the landlord about sound-proofing our common walls/ parent: yes I have been teaching my children to not stomp and run wild. Please bear with me and let me know what your schedule is like so I can work around it."

    I would say that and actually do it. Not just promise it and resume my ways a week later.

    Just like that. Because if someone approached me like I approached I'd fell they deserve that and understand my actions have consequences. Remember the entire problem disappears if they don't smoke in the apartment.

    Help understand this: smokers can't smoke on plans or inside the office or in the hospital. They do just fine. So what's the difference then? Don't smoke in the apartment, make a new friends and be a better human being while going through life.
    Why the hell not?




    I am looking for help putting a strategy together to achieve this. I have been polite and patient so far but it is obvious they are addicted and weak + selfish.

    The new rule would obviously be go into effect for the entire building not just that one unit.
    Still not possible?


    I have seen cases where the owner of a building decided no one could have a door mat and forced everyone to remove it (also in NJ). Why is that possible while telling everyone this is not: "this is my building and investment, I wish to protect it and eliminate the health hazard smoking poses. No smoking in the appartment effective XYZ (30 days from now). Anyone objecting to this new policy is free to move-out with no penalty". What if I managed to convince the landlord to do that?



    Also, in the state of NJ, the landlord tells me they have to at least offer the tenant the option to renew.
    Is that correct.
    The landlord could tell everyone that they could not have a door mat outside of their apartment door, but they cannot tell anyone that they cannot have a door matt inside their apartment door.

    Obviously you feel very strongly about this, but there still isn't anything that you or the landlord can do at this point.

  10. #10
    Join Date
    Jan 2008
    Location
    Toledo, OH
    Posts
    16,113

    Default Re: Rental in Nj: Cigarette Smoke from Unit Below

    I am looking for help putting a strategy together to achieve this. I have been polite and patient so far but it is obvious they are addicted and weak + selfish.
    They are selfish, but you are not? You want control over what someone else is doing in the privacy of their own home. This might come as a surprise, but when you live in an apartment community, you're going to occasionally be annoyed/inconvenienced by your neighbors. This is a plain fact of apartment living, and the only way to solve it is to buy/rent a detached residence.

    What if I managed to convince the landlord to do that?
    Why should anyone else move out to accommodate your desires? This has already been explained to you multiple times - what your neighbors are doing is neither illegal nor in violation of their lease, and your landlord is not legally permitted to restrict their activities INSIDE THEIR HOME. And no, you cannot bang on their door at 3AM because you can smell them smoking. They would have plenty of grounds to have you brought up on harassment charges, and believe me, kiddo, they would stick.

    If you're unhappy, YOU move. And no, I'm not a smoker, before you ask, as if that matters. Stop acting like an entitled child, hitch up your britches, and find a living situation that suits you better, instead of expecting everyone else to conform to your wants.
    I'm not a lawyer, but I play a researcher on the internet!
    Caution: I bite. WARNING: Do not send questions or complaints by PM. I'm likely to post them publicly and embarrass you half to death.
    I'm training for the MS Society's Bike to the Bay - and blogging about it!

    1. Sponsored Links
       

Page 1 of 2 1 2 LastLast

Similar Threads

  1. Cleaning and Repairs: Charges for Cigarette Smoke Damage
    By StressedInNC in forum Moving Out
    Replies: 7
    Last Post: 12-04-2012, 08:16 AM
  2. Quiet Enjoyment: Cigarette Smoke Seeping into Our Garage
    By Pandaaa in forum Living in the Rental Unit
    Replies: 3
    Last Post: 07-04-2012, 11:17 AM
  3. Harassment: Exposure to Cigarette Smoke at Work is Making Me Sick
    By kimmiller112 in forum Problems at Work
    Replies: 6
    Last Post: 07-17-2011, 09:40 PM
  4. Quiet Enjoyment: Exposure To Cigarette Smoke
    By hugabunch95 in forum Living in the Rental Unit
    Replies: 1
    Last Post: 12-20-2007, 03:19 PM
  5. Quiet Enjoyment: Exposure To Cigarette Smoke As A Basis To Break A Lease
    By hoffman1073 in forum Living in the Rental Unit
    Replies: 7
    Last Post: 09-04-2006, 09:03 PM

Bookmarks

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •  
 
Forum Sponsor
Landlord-Tenant Forms
Expert forms for all states. Residential & commercial. Immediate download.




Untitled Document