Q: I live in an apartment building that I thought would be zealous in protecting me from secondhand smoke. My lease has a clause in which I acknowledge that secondhand smoke is a legal nuisance, and I promise to make sure that no smoke from me or my guests infiltrates common areas or other tenants’ apartments.

Several months ago, I began getting smoke in my unit from a neighboring tenant. Management’s attempts over the past four months to stop it failed, so I asked to be moved. The management approved, but required that I sign a new, one-year lease. Since I’m planning on going to school in another city, I couldn’t do that — and I couldn’t bear the smoke anymore, so I had to leave.

I didn’t pay the last month’s rent, and I’m refusing to pay for any of the months left on the lease. Do I have the law on my side? –Dan C.

A: To management’s credit, they have recognized the dangers of secondhand smoke in a multifamily rental, and have made it clear that tenants bear some responsibility to keep their personal smoke from bothering others.

It suggests to tenants not only that they must follow the rule, but also that management will take reasonable steps to make sure that smoke from other people will not bother tenants.

Management seems to have dealt with your neighbor’s smoke appropriately, at least at first. I imagine they tried to caulk any cracks that might have allowed smoke to move into your space, sealed vents in the smoker’s unit, and perhaps even placed gaskets around light-switch plates to prevent smoke from entering the walls. But even with Herculean efforts, sometimes smoke just, well, gets in your eyes.

What happens then?

Your suggestion that you move to another unit is a reasonable next step. But putting conditions on that move — that you commit to another yearlong lease — was arguably not reasonable, and it had the effect of punishing you for legitimately exercising your right, under management’s own lease, to live smoke-free. This unreasonable response entitled you to exercise your only remaining option: to leave.

By acknowledging that secondhand smoke is a legal nuisance, management implicitly admitted that tenants may use any number of tried-and-true responses if management doesn’t make reasonable efforts to get rid of it. (Even without an explicit acknowledgment like the one in your lease, once a condition rises to the level of a legal nuisance, tenants can respond accordingly.)

The appropriate response will vary from state to state, and sometimes from city to city, but almost everyone will have the option to move out without liability for future rent.

The legal name for this option is "constructive eviction." In essence, it means that although management has not deliberately locked you out, moved you out, or done anything else that intentionally deprives you of the use of your rental, their actions (or inactions) have amounted to the same thing: They have made it impossible for you to safely or comfortably continue living there.

This notion is age-old, and from the sounds of things, you invoked it properly, after giving management ample opportunity to remedy a serious problem.

A situation remarkably like the one you describe was recently considered by a trial court in New York (Upper East Association v. Cannon). The judge not only excused the tenant from liability for future rent, but he also retroactively abated the rent the tenant paid to live with secondhand smoke after having complained to management. In other words, the judge recognized that the tenant wasn’t getting what she paid for (a smoke-free unit), and reduced the value of the unit accordingly.

For the first month, the judge figured the value of the unit was 10 percent less than the stated rent; for the second month, the value diminished 20 percent, and so on, to 40 percent for the fourth and final month of residence.

Retroactive abatement of rent is powerful stuff. It means that when a problem is brought to management’s attention and after a reasonable period of time (to fix the problem), the value of the unit goes down and tenants are justified in asking a judge to give them a credit for living with the problem.

Landlords take note: The faster you deal with serious problems, the fewer the number of months of rent abatement you may face.

Q: A few weeks ago, you wrote about a landlord who wondered whether he’d have to tell a prospective manager that the business would soon be up for sale. You seemed to say that he’d need to say something, if the applicant made it clear that he would be taking the job based on his assumption that he’d be working for this owner

I can’t believe that a jury would buy that and make the owner pay when the business changed hands and the buyer let the manager go. After all, nothing remains the same forever. –Charles D.

A: Hold your nose, I’m about to explain to you how lawsuits work. It’s not an altogether pretty picture, and the end result often has little to do with whether a judge or jury would ultimately find one side or the other responsible.

First, to your point about an owner needing to disclose plans to sell the business when hiring a manager. Sometimes landlords are legally required to disclose certain information, such as the presence of lead paint hazards, or the name of the property owner. These laws specify consequences (fines) for failing to comply. But the kind of disclosure we’re talking about usually isn’t specifically legislated.

Instead, an owner’s failure to be open about his plans to sell, when he knows that information would significantly affect an applicant’s decision about taking the job, might expose him to a claim of intentionally withholding important information that the applicant would have wanted to know (fraud). But not every "plan" needs to be disclosed.

At one end of the spectrum, an owner who plans to retire one day and hires a manager who doesn’t ask about his long-term plans for continued ownership of the business would probably not be taking much of a risk if he failed to mention that at some point he will sell. But an owner who is an hour away from signing a sales contract when he hires an applicant who has made clear that he’s taking the job in order to work for this particular owner would be taking a substantial risk in not coming clean.

Most hiring situations fall between these two extremes. And many of them, it’s true, would not result in a judgment for the applicant for millions of dollars. But that’s not what realistic landlords should be focusing on. Instead, they need to understand the typical way these claims unfold.

Your disappointed applicant will visit a lawyer, explain what happened, and ask if he has a case. "Well," says the lawyer, "It isn’t worth taking to trial, and you’re not going to collect big on this one. But there’s enough here to warrant filing a lawsuit. You’ll collect something (and I’ll take a third of whatever we win). Do you want to proceed?"

Many people will say yes, and listen as the lawyer explains, "We’ll find out if your landlord has an insurance policy that covers him for the consequences of his employment mistakes. Not telling you about his plans is probably the kind of mistake that his insurance would cover. But that policy has a deductible — probably $25,000 to $50,000.

"That means that the landlord will pay at least the first $25,000 himself. Even if he digs in and goes all the way to trial, and wins, he’ll end up paying the deductible amount in lawyers’ fees and court costs. A high deductible is a lot of money for this small operator. If he’s a savvy business person, he’ll settle before his costs mount up. In short, he can’t afford to fight, even if he thinks he’s in the right."

So you see, it’s not a matter of whether a judge or jury would ultimately side with the applicant. In situations like this, it’s whether the claim is "colorable" (the lawyerly term for "passes the smell test"). If it is, and the plaintiff has found a hungry lawyer, the economics of insurance and litigation costs will force all but the most wealthy and righteous landlords to settle.

Smart landlords keep these realities in mind as they run their business. It’s all about narrowing the opportunities for lawsuits. It may be a pain, but the fewer "colorable" claims you create, the lower the chances that you will be drawn into a nuisance lawsuit.

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