Our partner, Jarred I. Kassenoff, appeared in Sunday's New York Times Real Estate Section responding to a reader's question.
Here's the piece in its entirety:
Lots of Smoking in the Courtyard
By: JAY ROMANO
Q I'm a tenant on the first floor of a rent-stabilized building in Chelsea. My windows face into a courtyard, and I have had to close them on numerous occasions because of people smoking in the courtyard. Even with my window closed, the smoke still drifts in through my air conditioner. Can I sue to stop this?
A "Suing landlords, or neighbors, based on secondhand smoke can be a difficult proposition," said Jarred Kassenoff, a Manhattan real estate lawyer. Some judges have ruled that when a person lives in an urban area, that person is expected to endure a certain amount of noise, dirt, smoke, foul odors and other common annoyances. In fact, a case brought by condominium owners seeking damages from neighbors for secondhand smoke recently was dismissed by an appellate court. At the same time, Mr. Kassenoff said, a renter might be able to claim violation of the "warranty of habitability," which protects tenants from conditions "detrimental to life, health or safety." "Since secondhand smoke is believed to be a carcinogen," he said, "the letter-writer could assert that the warranty has been violated and that the landlord has a duty to correct the situation." If that didn't work, and the writer had to vacate the apartment because of continuing smoke exposure, that could be considered a "constructive eviction," which would relieve the tenant of any further obligation to pay rent. The ultimate decision would be made by the court.