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To live in my building, we all signed an agreement saying there is no smoking allowed. Well someone has been smoking on my floor. There has been 4 notices from management to all people living on the floor that you can't smoke. Well, the smoker continues to do so, and the smoke enters my apartment. I have been in contact with the property manager and they have said that they are aware of the issue but can't do anything about it due to Covid-19. I want to move out and break the lease due to smoking.

My lease says I have to pay 2 months rent to break the lease. I obviously would like to not pay 2 months rent, especially since the reason I want to move out is due to unbearable smoke.

Do I have any grounds for this, since neighbors are breaking the lease they signed? If so, how do I proceed?

Thanks!

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    Depends on the details of your lease. You'd need legal advice from someone who's reviewed the details of your specific situation, which is unfortunately off-topic here, as we cannot provide individualized legal advice. Generally speaking, the relevant factor would be whether the landlord has violated any of their obligations under the lease or relevant tenancy laws. – Ryan M Oct 29 '20 at 1:49
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Do I have any grounds for this, since neighbors are breaking the lease they signed? If so, how do I proceed?

You likely do. Your situation resembles the notion of quiet enjoyment. See Midway Park Saver v. Sarco Putty Co., 976 N.E.2d 1063, 1073 (2012):

A covenant of quiet enjoyment is implied in all leases and is breached when there is actual or constructive eviction of the lessee by the lessor of the property. [...] [B]reach of the covenant of quiet enjoyment may be found without finding that the lessor intended to deprive the lessee of possession of the property

(citations omitted).

You need to assess the lease from the standpoints of (1) landlord's negligence or refusal to enforce the no-smoking clause with respect to the smoker, (2) constructive breach (meaning that the landlord's conduct basically leaves you no option but to breach the lease), and (3) smoker's tortious interference with your lease. Standpoints (1) and (2) are largely equivalent.

The terms of the lease are unlikely to [explicitly] sanction the landlord's non-enforcement of the clause. But there are at least two legal arguments that favor your position:

  • The mere existence of no-smoking clause induces a tenant's reasonable expectation that the landlord will enforce the clause across the board. That inducement occurs at the formation of the contract, if not earlier.

  • The landlord's pretext that it "can't do anything about it due to Covid-19" reflects landlord's implicit acknowledgment of the aforementioned expectation of enforcement. Make sure you have that landlord's statement in writing so you can file it in court if need be.

The option that involves suing the smoker has the purpose of making him responsible for the penalization if you breach the lease. There is no contract between you and the smoker-tenant, but his repeated violations of a clause of which he was aware clearly disrupt the enjoyment to which you as tenant are entitled (and ultimately your contract with the landlord). This type of claims is known as tortious interference with relation.

Prior to suing the smoker, you might want to send him a cease and desist letter letting him know of the legal ramifications of his conduct. This might obviate both breaching your lease and court proceedings altogether. Regardless, make sure you have proof that the smoker received your letter.

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  • Is getting an injunction against the neighbor and having them prosecuted for contempt of court an option? – Acccumulation Oct 29 '20 at 23:05
  • @Acccumulation Good question. The cause of action is the same, whence it wouldn't hurt for the OP to request an injunction as an alternative to monetary or declaratory relief. However, the landlord seemingly has better chances to obtain that injunctive relief than if the OP requested it. Since the contract at issue is a landlord-tenant one (i.e., not tenant-tenant), the court might deny/discard the OP's [prayer for] injunctive relief on grounds that only the landlord has discretion on whether to enforce the no-smoking clause with respect to the smoker. – Iñaki Viggers Oct 29 '20 at 23:59
  • @Acccumulation Also, from a procedural perspective, enforcing the injunction against the smoker will entail more inconvenience to the OP than if relief in the form of breaking the lease were granted. If the smoker violates the injunction, the landlord and/or the OP (accordingly) will have to meet their burden of proof, litigate the motion to show cause, incur attorney fees unless they litigate in pro per, deal with the delay & vexations of court proceedings, and each time take the realistic risk that the court might arbitrarily decline to enforce the injunction. – Iñaki Viggers Oct 30 '20 at 0:22

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