Is neighbor's cigarette smoke a basis to terminate lease?

Attorney Tom Olsen: Had an email recently from a tenant and the tenant was complaining about what was going on in the apartment next door to them and that was-- Next door to them lived a cigarette smoker. One way or another that cigarette smoke was getting into our email, into their apartment, and they’re wondering is that a basis for them to terminate their lease and move out.

Attorney Rob Solomon: This question has many forms and the first form that it tends to come in is when people hear noises and other things from next door neighbors and they expect the landlord to have a responsibility to fix the noise, the barking dog or the playing of loud music. I’m forced to tell them that generally speaking the landlord does not have a contractual relationship to the neighbors. He has no power to stop what’s going on in the neighbors. No power that’s greater than what the tenants would have calling, in that case, animal control or calling the police if the noises are loud.

The situation that you’re referencing is one where, if it was an apartment complex, then the landlord might most probably has a contractual relationship with the next door neighbor. If that contractual relationship was a lease that prohibited smoking, then I think this story has a different ending. Then the landlord could be expected to enforce those terms and help the neighbor out which is who is being bothered by the smoke.

Attorney Tom Olsen: Do most leases these days provide that the tenants cannot smoke within the apartment or house that they’re renting?

Attorney Rob Solomon: I wouldn’t say most, but it is a common term I’m often asked. We write leases for people, we sculpt leases for people that they can repeatedly use for one tenancy after another if they’re a landlord. That’s one of the topics that comes up when I try to sculpt that leases. Are you going to allow pets? Are you going to allow smoking? Good leases address these very specific requirements of the landlord.