Avoid Lease Addendums Regarding Second Hand Smoke

In Upper East Lease Assoc, LLC v. Cannon, January 2011, an owner sued a resident for unpaid rent. The resident claimed that the owner had violated the warranty of habitability by allowing secondhand smoke to infiltrate from a downstairs neighbor.

The lease between the landlord and tenant had an addendum that stated, “Tenant acknowledges and agrees that the prevention by tenant, its invitees and guests, of the infiltration of secondhand smoke into the common areas of the building and/or into other apartments of the building is of the essence to this lease…”

The owner attempted to resolve the secondhand smoke problem by caulking and sealing around vents, but the measures were ineffective and when the resident asked for a month of free rent along with a unit transfer, talks between the landlord and tenant broke down and the tenant stopped paying rent.

The case went to trial and a New York district court said the resident was excused from paying rent after being constructively evicted, ruling that the secondhand smoke made the unit uninhabitable, thus effectively evicting the resident. The key to this ruling was that by having an addendum stating that secondhand smoke was a lease issue and related to habitability, the landlord accepted responsibility for dealing with secondhand smoke.

Recommendation: Do not have a secondhand smoke lease addendum. If you want to prevent secondhand smoke, ban smoking at your property altogether.