Q: I inherited my mother’s house and rented it to tenants who are complaining about noise from the neighbors. The neighboring property is a townhouse that’s occupied by college students (who are also renters), and they do indeed make a racket, with loud parties many nights. I’ve talked to them and tried to get them to quiet down, to no avail. My renters are telling me that they can break their lease (and not be responsible for rent for the rest of the lease term) because of this situation. Since I can’t evict the neighbors, it seems to me that I’ve done all I can do, and that my tenants should not be able to get out of their lease. –Eloise D.

A: In most states, your tenants will indeed have the right to break the lease, with no responsibility for future rent, if the situation has become intolerable — even if you’re doing all you can do to make things better. An intolerable situation would be one in which a reasonable person could not live peacefully in your rental. Night after night of loud parties next door would probably qualify in most judges’ eyes.

But let’s think again about whether there are avenues you haven’t tried yet. First, talk to the townhouse owners and see if they will deal with their tenants (they have the power to terminate the lease if the students’ behavior truly disturbs the peace of the neighborhood). Second, find out if your city has a noise ordinance, and if it does, tell your tenants to arrange for the noise to be measured. Try to have the city send any notices of violations (and fines) to the townhouse owner, not the students. That might get results. Finally, talk to the homeowners association for that development. The association undoubtedly has a rule prohibiting unnecessary noise, and you can ask them to enforce it (unfortunately, you cannot sue to enforce it, because you aren’t a member of the association). Finally, if all else fails, consider a lawsuit in small claims court, in which you describe the situation as a public nuisance, and ask the judge to order the noisemakers to stop and to pay your tenants damages for having put up with the problem.

Q: We live in a multifamily apartment building that prohibits smoking in common areas. However, tenants can smoke in their apartments. Our next-door and downstairs neighbors smoke a lot, and because the windows are set close together and the ventilating system serves all apartments, we get a large dose of their smoke. Sometimes this second-hand smoke makes me cough, and the smell is noxious. Is there anything we can do about it? –Tom and Susan D.

A: The ill effects from second-hand smoke are becoming increasingly known, and lawmakers and courts are taking note. In California, for example, the state’s Air Resources Board has added second-hand smoke to its list of toxic air contaminants. Though no laws require landlords to forbid smoking in individual rental units, there are legal arguments you can use to try to clear the air. Here are some that tenants have used:

  • It’s a nuisance! A legal nuisance is any condition or activity — like accumulated garbage or drug dealing — that is offensive to public morals or health and safety. If you can convince the landlord to view second-hand smoke as a legal nuisance, you give the landlord the power to stop it, since landlords are legally required to forbid nuisance-making behavior, no matter what the lease says. Landlords who need convincing might be persuaded by local health inspectors, who are charged with making sure multifamily living conditions are nuisance-free.

  • We’ll leave! Practically every state requires landlords to maintain housing that is fit for human habitation. Whether landlords know it or not, by offering the place for rent they have warranted that it’s fit. When moving away is an option, some tenants have argued that the smoke has made their rentals uninhabitable. When the landlord doesn’t honor his warranty of habitability, tenants are justified in breaking their leases.

Keep in mind that these theories are not sure winners. No laws require judges and health inspectors to label second-hand smoke a nuisance, nor can you be sure you’ll be excused from honoring a lease because smoke is all around. One thing is for sure, however: If a significant number of tenants join together to present their gripe, the landlord is likely to listen, and might consider banning smoking in future leases.

Q: An old friend has moved to town and is staying with me while she looks for an apartment. The market is tight and she’s been here for a month, and that’s fine with me. But my landlord, who lives downstairs, told me she’d have to leave or begin paying rent! My lease doesn’t say anything about guests. Is the landlord within her rights to make this demand? –Tamara T.

A: Landlords are understandably leery about long-term guests. They fear they’ll turn into occupants, whom they haven’t screened (you probably went through a credit check and reference check). They also know that more residents, whatever they’re called, equals more wear and tear, and they set their rents based on an expected amount of wear and tear. Careful landlords include clauses in their leases that forbid additional occupants unless they’ve given consent, and they write guest clauses that define permissible guest stays.

Check your lease for a clause that deals with additional occupants. If it’s there, your landlord is probably within her rights to view your friend as an unauthorized occupant at this point. But all is not necessarily lost. Sit down with the landlord, explain the situation, and see if you can work out a compromise. If you expect your friend to stay longer, it’s not unreasonable for her to pay a reasonable sum. She is, after all, expecting to pay rent when she finds a place.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of “Every Landlord’s Legal Guide” and “Every Tenant’s Legal Guide.” She can be reached at janet@inman.com.

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