Q: We are having a civil matter with the management in our apartment complex. The tenant below us smokes inside, and the
Second hand smoke comes inside our apartment. This has been causing health issues, and we wouldn’t of moved here if we knew it wasn’t non smoking as advertise on there web page and stated in the leased as no smoking. After complaining to management she responded with a letter saying that tenants were allowed to smoke in there apartments. We would like to know our legal rights and how to proceed. Thank you.
You may have a claim for constructive eviction. Connecticut law provides that your landlord has the obligation to ensure that conditions do not render your unit "unfit or uninhabitable." Conn. Gen. Stat. Ann. § 47a-7(a). Connecticut courts recognize that "[a]ny disturbance of the tenant's possession by the landlord whereby the premises are rendered unfit or unsuitable for occupancy, in whole or in part, for the purposes for which they were leased amounts to a constructive eviction." Welsch v. Groat, 95 Conn. App. 658, 663 n.7, 897 A.2d 710, 714 n.7 (2006) (citation omitted). "In addition to proving that the premises are untenantable, a party pleading constructive eviction must prove that (1) the problem was caused by the landlord, (2) the tenant vacated the premises because of the problem, and (3) the tenant did not vacate until after giving the landlord reasonable time to correct the problem." Baretta v. T & T Structural, 42 Conn. App. 522, 526, 681 A.2d 359, 362 (1996) (citation omitted).
Whether secondhand smoke renders your unit unfit and uninhabitable is fact-sensitive. In Poyck v. Bryant, a New York landlord-tenant court held that "secondhand smoke emanating from a neighbor . . . can be grounds for a constructive eviction." Poyck v. Bryant, 700, 820 N.Y.S.2d 774, 775-77 (Civ. Ct. 2006).
I would recommend consulting with a landlord-tenant lawyer to determine if you are entitled to terminate your lease, vacate the premises, and potentially seek damages from your landlord as a result of the second-hand smoke.
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