I'd like to breathe again, please.

January 13, 2008 7:05 PM

Apartment life. The smoker downstairs is making it very difficult for me to breathe!

I have rented an apartment for over 2 years now. I am on my third 12-month lease with the company. I live in an upstairs unit, and a new tenant recently moved into the apartment below mine. The tenant there is a very heavy smoker and cigarette smoke has been drifting into my apartment for over a week now. I have asthma and allergies and I have had an extremely difficult time living normally.

I spoke with the maintenance staff who said there is not much to be done because the apartment is not built to be air-tight. I have used HEPA air filters, and I have tried to keep my windows open often, but it is winter so I'm having to choose between being warm and breathing freely. Tonight, I went to speak with the tenant below me and she rudely said she was not going to stop (prior to speaking with her, I wrote her a nice letter asking if she could smoke outside or near a window). I am stuck in my lease until May (as of writing this it is the middle of January).

Because the maintenance staff is not able to provide any remedy and my health is obviously at risk, do I have the option of terminating my lease without penalty? I have looked at my state's tenant-landlord laws and there is an implied habitability clause as well as one that states:

Except as otherwise provided in this act, if there is a noncompliance by the landlord with the terms of the rental agreement or Section 118 of this act, which noncompliance renders the dwelling unit uninhabitable or poses an imminent threat to the health and safety of any occupant of the dwelling unit and which noncompliance is not remedied as promptly as conditions require, the tenant may immediately terminate the rental agreement upon written notice to the landlord which notice specifies the noncompliance.

I feel like I am living on borrowed time here, as my breathing is not normal and I have been having weird symptoms such as waking up with a dry mouth, jitteriness, and loss of sense of smell. I have enjoyed living in these apartments, and if I had the choice I would not leave, but I don't think I have a choice. I am not sure if I can hire a lawyer at this moment, but if the situation calls for it, I'll consider it.

Thank you very much.

posted by anonymous to Health & Fitness (17 answers total)

Where are you?

Is there a tenant association in your locality? They might be able to advise on this.
posted by grouse at 7:14 PM on January 13, 2008

What state are you in? Each state has their own set of laws and perhaps fellow denizens of your state who are on this board will have more specific ideas they can throw your way.

That being said, you can try to contact your state rental board and see exactly what you need to do - i.e. documentation, doctors notes, etc.
posted by bitteroldman at 7:15 PM on January 13, 2008

My gosh, grouse, great minds think alike!
posted by bitteroldman at 7:16 PM on January 13, 2008

Since you feel that your health is at immediate risk, would it make sense to see if you can get some sort of filter mask or breathing machine that will reduce your discomfort while you're wrangling out any other resolution? Health insurance might actually pay for something like that, if you have it.
posted by XMLicious at 7:16 PM on January 13, 2008

I'm in Oklahoma. Thanks for the quick responses.
posted by skwillz at 7:19 PM on January 13, 2008

Is this a complex? Maybe you could talk to management about moving into another unit without incurring a penalty for breaking your lease. That doesn't guarantee you won't run into the same problem in the future, but you run that risk anyway if you plan to rent in another apartment building/ complex.
posted by kimdog at 7:36 PM on January 13, 2008

IAAL/IANYL.

Have you spoken with the LL/company? S/he/it might let you out of the lease early, under the circumstances. Or perhaps you could move to another unit in the building? Since the lease has already been signed by her, the LL might not be able to do anything about her smoking.

Might you qualify for legal aid? Check out the OK legal aid website that could connect you to legal aid for LL/tenant issues.

You probably should see a lawyer though, assuming you can't work something out with the landlord/company.
posted by n'muakolo at 7:37 PM on January 13, 2008

And a few pages you might not have seen (though not directly relevant to OK law):

- your problem, generally
- tons of info for dealing with the smoker next door
- dealing with smoke in the home, generally
posted by n'muakolo at 7:44 PM on January 13, 2008

I think your best bet, if you're in an apartment building with multiple units, is to talk to the landlord or property manager and see if you can move to a different unit in the building or complex.

If you're a good tenant, they'll want to keep you happy. If they have a similar unit that's vacant, it's a no-brainer to allow you to move there.
posted by gwenzel at 7:53 PM on January 13, 2008

i'd plan on moving out soon, to a smoke-free building. start preparing, look around.
posted by brandz at 7:57 PM on January 13, 2008

Time to take up tap dancing as a hobby.
posted by caddis at 8:06 PM on January 13, 2008 [7 favorites]

Could you rig a hepa filter to draw air from outside, blowing in, pressurizing your apartment? this way the smoke fumes would be repelled. I did this in my apartment and it really helped with the dusting.
posted by hortense at 8:09 PM on January 13, 2008

Ok - first I'm going to *just a little bit* suggest that some of your problem could be psychosomatic. I totally buy that you can smell the smoke... and maybe that you are breathing a tiny little bit of it. But this:

I feel like I am living on borrowed time here, as my breathing is not normal and I have been having weird symptoms such as waking up with a dry mouth, jitteriness, and loss of sense of smell.

Coupled with two of your prior AskMes - one where you worry about why public restrooms aren't cleaner, and another where you fret about how your "face smells", make me think you might be kind of high strung where health is concerned. Not that there's anything wrong with that.

Ok - IANYL - but it is not against the law to smoke in your own home. *However*, it does behoove your landlord to enforce the terms of the lease. If your lease states that smoking is not allowed, you can press your landlord to enforce that rule, and potentially (with the aid of an attorney to guide you through the process) use non-enforcement to break your lease without penalty. If it's allowed, though, then you might have to move to a building with different rules.
posted by moxiedoll at 8:24 PM on January 13, 2008 [9 favorites]

I would also recommend adding a humidifier to the mix, as moist air does not allow smoke to travel as far as dry air does. Water will want to cling to the smoke particles and precipitate out of the air quicker than they would otherwise. It might also help with your sleeping.
posted by slavlin at 8:25 PM on January 13, 2008

Best answer: You might want to read this article, if you haven't come across it already. It addresses your problem and has opinions from two attorneys (one is a landlord's attorney, the other a tenant's attorney). Not sure what state it's from, but could provide some good general background.

One of the attorneys in the article mentions an interesting tactic, which would be using the Fair Housing laws requiring a landlord to make reasonable accommodation for a disability. If your asthma qualifies as a disability, that's a pretty big stick you can wave over their heads. But you're going to have to work with someone to figure out if you qualify.

I think you are deep into consult-a-lawyer territory here. You've tried to be nice, that hasn't gotten anywhere. Aside from the medical issue, it seems (in my layman's opinion) like you might have the basis for a private nuisance suit against the downstairs tenant, if you really wanted to take the gloves off; the situation isn't really that dissimilar from lots of other noxious-odor cases, of which there are many examples. Obviously you need to work with a lawyer.

Just as things you might want to think about, before you go to a lawyer:
1) Do you actually want to try to eliminate the smoke in your apartment, either by getting the neighbor to change their behavior, or getting them evicted? (Realize that they may not stop until they get evicted; if you start this, understand where it may lead -- no regrets later.)
2) Do you just want to get enough leverage so you can get out of your lease early?

I don't know whether either of these is possible, you understand, but knowing what your goal is will shape the discussion you'll have with an attorney greatly. #2 strikes me as far easier than #1, in terms of the time and expense on your part that'll be required; really all you need to do is make it obvious to the landlord that holding you into your lease will cause them more pain than letting you go. Also, consider that #1 may leave you in a tense, if not actually hostile, relationship with the landlord and other tenants. As justified as you may feel in suing their asses for stinking up your home, it may sadly just be easier to walk away.

Good luck.
posted by Kadin2048 at 9:14 PM on January 13, 2008

You're not alone.
posted by flabdablet at 9:45 PM on January 13, 2008

Kadin - THANK YOU! I think if it comes down to it, I would rather get out of my lease and find a non-smoking complex to live at.

Everyone - Thanks for your answers. It's nice to get some outside perspective on these issues.
posted by skwillz at 11:18 PM on January 13, 2008