Are You Legally Entitled to Smoke in Your Apartment?

Recently, Suffolk County lawmakers passed a bill that will ban smoking in apartment complexes.  The prohibition applies to apartment complexes with ten or more units- including senior facilities and condominiums.  Smoking will be prohibited in all common areas of the building as well as outside common areas including courtyards and playgrounds.  Violators are subject to a $250 fine, and a jail sentence could be imposed for those with multiple violations.

Recently, Suffolk County lawmakers passed a bill that will ban smoking in apartment complexes.  The prohibition applies to apartment complexes with ten or more units- including senior facilities and condominiums.  Smoking will be prohibited in all common areas of the building as well as outside common areas including courtyards and playgrounds.  Violators are subject to a $250 fine, and a jail sentence could be imposed for those with multiple violations.

If you are a tenant who is suffering due to another tenant’s second hand smoke, you may have a claim against your landlord for breach of the Covenant of Quiet Enjoyment, or the Warranty of Habitability.  However, it is usually best to first attempt to mitigate the situation.  In many cases, smokers are unaware that their second hand smoke may be entering your apartment.  You should make sure your neighbor knows of the issue.  If the smoke continues to be a problem, make your landlord aware.  If smoking is permitted in the building, perhaps there are some measures they would be able to take such as creating a designated smoking space, or repairing any cracks or holes from which smoke could be wafting in.

However, in order for a Landlord to evict a tenant due to smoking, they must show that the tenant violated the terms of the lease.  Therefore, it is usually necessary that a lease specifically state that smoking is not permitted in the building in order to evict a tenant on the grounds of smoking.  Although there is no Constitutional right to smoke, smoking is still a legal activity for adults.  However, because a smoke free policy does not infringe on smokers’ rights, it may be implemented in the leasing provision of a rental unit.  In addition to protecting the health of non-smokers, many landlords find that a smoking ban can reduce cleaning costs and help reduce the risk of fire.

If you are faced with legal issues arising from smoking in your apartment, or have exhausted your non legal remedies and are suffering from the effects of second hand smoke in your building, contact an experienced landlord-tenant attorney who can best advise you of your legal rights and remedies. Call the landlord-tenant lawyers at the Law Office of McGuire & Pelaez, P.C. today at (631) 348-1702.