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Neighbor is smoking marijuana in the apartment below mine

My wife and I and our 2 year old son live on the 3rd floor of a 3 family apartment home. The tenet below smokes pot im her apartment. Because this is an old home, we can smell it thru the floor and walls and in the stair well every time she does. The landloard has asked her not to do this. We do not want to be exposed to this second hand smoke, especially with our child living in the home. We have no lease but the Landloard is very clear with everyone there is no smoking of any kind in the building. He has not been able to catch her in the act, thus I assume this is why he has not asked her to leave. She continues to smoke despite his requests not to. What rights do we have to stop this. Can we involve the police to make her stop? Can we sue her to make her stop? If the Landloard does not feel he can evict her, what can we do? Moving seems like the easy answer, but we have been here for 5 years with no problems until she moved in this year. Thank you

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Submitted Fri, 04/21/2017 - 10:19

There is no basis to go to the police for this complaint. Since it is now legal to smoke marijuana, there is nothing they can do. You also cannot directly sue your neighbor, since there is no basis to sue her either since you have no contract with her. The only person that you can sue or make any kind of legal demand on is your landlord. When a landlord rents to multiple tenants, they are responsible if the behavior of one tenant interferes with another.

Realistically, it will be almost impossible for your landlord to evict the other tenant. Unless there is a written lease or something in writing stating that there is no smoking in the apartment, it will be hard to prove she is not allowed to do so. Similarly, proving she is actually doing it will be almost impossible. Your landlord could try and evict the tenant without cause, but it can take a couple months to get to a hearing, and the court can grant up to six months to stay before allowing an actual eviction.

However, when a landlord creates or allows (such as through another tenant they rent to) a condition that seriously interferes with your ability to reasonably use your rental, they are breaching the covenant of quiet enjoyment. This is a warranty built into every rental agreement, whether it is written or not. The liability for this is three months rent or actual damages, whichever is more. As a tenant at will, you also have a right to terminate your lease on 30 days notice and move out. You should probably send a demand letter to your landlord demanding that they pay you three month's rent and take action to stop the neighbor from smoking. This could also give them incentive and cause to evict the other neighbor.

Atty. David Owens
Grolman LLP

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