[RPPTL LandTen] Residential lease issue- second hand smoke
Has anyone dealt with issues of second hand smoke/indoor air quality as grounds to terminate a residential lease?? A pro bono matter brought to my attention on behalf of a residential tenant question whether a residential tenant has grounds to terminate a lease early where second hand smoke is making affecting habitability.
Facts: Does an apartment landlord/complex have any liability towards a specific tenant (here a 21 yr old mother with a 1 yr old infant who requested a non-smoking unit - but not in lease) where the unit is suffering from the intrusion of second hand smoke from 1) a central air condition system, 2) from smokers in the hallways, and 3) smoke in the existing carpets (all three conditions are present)? If so, does that constitute a breach of habitability under the lease and the requirements F.S. 83.51, in particular by means of any applicable health codes?
Any thoughts would be welcome.
Neil
[cid:image001.jpg@01CE4196.91F44E10]
Neil B. Shoter
Partner / LEED Accredited Professional
Shutts & Bowen LLP
CityPlace Tower, 525 Okeechobee Blvd, Suite 1100 | West Palm Beach, FL 33401
Direct: (561) 650-8535 | Fax: (561) 822-5525
E-Mailmailto:NShoter@shutts.com | Biographyhttp://www.shutts.com/attorneys-Neil-Shoter.html | V-Cardhttp://www.shutts.com/vcard-181.vcf | Websitehttp://www.shutts.com
IRS CIRCULAR 230 NOTICE: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated,any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.
The information in this email transmission is privileged and confidential. If you are not the intended recipient, nor the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any dissemination or copying of this transmission (including any attachments) is strictly prohibited. If you have received this email in error, please notify the sender by email reply.
Thank you.
No experience on that issue. Will probably be hard to prove since it is
not something you can document with a photo for example. If an air quality
test can be done that would detect the second hand smoke the tenant should
have it done.
Andrew Garofalo
Board Certified Real Estate Attorney
Garofalo Law Office P.A.
888-658-8686
www.garofalolaw.net
Sent from my mobile phone.
On Apr 25, 2013 9:34 AM, "Neil B. Shoter" NShoter@shutts.com wrote:
Has anyone dealt with issues of second hand smoke/indoor air quality as
grounds to terminate a residential lease?? A pro bono matter brought to
my attention on behalf of a residential tenant question whether a
residential tenant has grounds to terminate a lease early where second
hand smoke is making affecting habitability. ****
Facts: Does an apartment landlord/complex have any liability towards a
specific tenant (here a 21 yr old mother with a 1 yr old infant who
requested a non-smoking unit – but not in lease) where the unit is
suffering from the intrusion of second hand smoke from 1) a central air
condition system, 2) from smokers in the hallways, and 3) smoke in the
existing carpets (all three conditions are present)? If so, does that
constitute a breach of habitability under the lease and the requirements
F.S. 83.51, in particular by means of any applicable health codes? ****
Any thoughts would be welcome.****
Neil****
[image: http://www.shutts.com/shutts100.jpg]****
Neil B. Shoter* *
Partner / LEED Accredited Professional ****
Shutts & Bowen LLP
CityPlace Tower, 525 Okeechobee Blvd, Suite 1100 | West Palm
Beach, FL 33401
Direct: (561) 650-8535 | Fax: (561) 822-5525
E-Mail NShoter@shutts.com | Biographyhttp://www.shutts.com/attorneys-Neil-Shoter.html
| V-Card http://www.shutts.com/vcard-181.vcf *| *Websitehttp://www.shutts.com
IRS CIRCULAR 230 NOTICE: Pursuant to recently enacted U.S. Treasury
Department Regulations, we are now required to advise you that, unless
otherwise expressly indicated,any federal tax advice expressed above was
neither written nor intended by the sender or this firm to be used and
cannot be used by any taxpayer for the purpose of avoiding penalties that
may be imposed under U.S. tax law. If any person uses or refers to any such
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Thank you.
landten mailing list
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I find that a great place to start research is Google Scholar. I searched "'second hand smoke'" habitability" and it looks like there are a bunch of articles and cases on the topic, for example:
http://tobaccocontrol.bmj.com/content/13/suppl_1/i61.short
Eric D. Rapkin
Akerman Senterfitt | 350 East Las Olas Boulevard | Suite 1600 | Fort Lauderdale, FL 33301
Dir: 954.759.8962 | Main: 954.463.2700 | Cell: 305.343.6129 | Fax: 954.847.5350
eric.rapkin@akerman.com
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Andrew Garofalo
Sent: Thursday, April 25, 2013 9:46 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Residential lease issue- second hand smoke
No experience on that issue. Will probably be hard to prove since it is not something you can document with a photo for example. If an air quality test can be done that would detect the second hand smoke the tenant should have it done.
Andrew Garofalo
Board Certified Real Estate Attorney
Garofalo Law Office P.A.
888-658-8686
www.garofalolaw.nethttp://www.garofalolaw.net
Sent from my mobile phone.
On Apr 25, 2013 9:34 AM, "Neil B. Shoter" <NShoter@shutts.commailto:NShoter@shutts.com> wrote:
Has anyone dealt with issues of second hand smoke/indoor air quality as grounds to terminate a residential lease?? A pro bono matter brought to my attention on behalf of a residential tenant question whether a residential tenant has grounds to terminate a lease early where second hand smoke is making affecting habitability.
Facts: Does an apartment landlord/complex have any liability towards a specific tenant (here a 21 yr old mother with a 1 yr old infant who requested a non-smoking unit – but not in lease) where the unit is suffering from the intrusion of second hand smoke from 1) a central air condition system, 2) from smokers in the hallways, and 3) smoke in the existing carpets (all three conditions are present)? If so, does that constitute a breach of habitability under the lease and the requirements F.S. 83.51, in particular by means of any applicable health codes?
Any thoughts would be welcome.
Neil
[http://www.shutts.com/shutts100.jpg]
Neil B. Shoter
Partner / LEED Accredited Professional
Shutts & Bowen LLP
CityPlace Tower, 525 Okeechobee Blvd, Suite 1100 | West Palm Beach, FL 33401
Direct: (561) 650-8535tel:%28561%29%20650-8535 | Fax: (561) 822-5525tel:%28561%29%20822-5525
E-Mailmailto:NShoter@shutts.com | Biographyhttp://www.shutts.com/attorneys-Neil-Shoter.html | V-Cardhttp://www.shutts.com/vcard-181.vcf | Websitehttp://www.shutts.com
V Cardhttp://www.akerman.com/bios/vcard.asp?id=574 | Biohttp://www.akerman.com/bios/bio.asp?id=574 | akerman.comhttp://www.akerman.com/574
[http://www.akerman.com/akermanlogo4.gif]
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Yes I have gotten (a client) out of a lease for that reason. Sent the notice saying that they had to fix it, pursuant to statute, and they cleaned carpet but it wasn't enough, and we terminated. They did not go after the tenant. We had many people who would have testified to the odor and "feel" of the smoke constantly intruding into the apt. As to "liability" for damages, never pushed that far. In addition, several years ago my inlaws walked out of a seasonal lease in Boynton because of the smoke and prior presence of a dog; landlord threatened, I threatened back, and nothing came of it.
I am also aware of people in condo/coops who were able to force the management to filter a/c systems in buildings and improve weather stripping around indoor hallway doors. I believe there is recent case law in NY about this.
On Apr 25, 2013, at 9:32 AM, Neil B. Shoter wrote:
Has anyone dealt with issues of second hand smoke/indoor air quality as grounds to terminate a residential lease?? A pro bono matter brought to my attention on behalf of a residential tenant question whether a residential tenant has grounds to terminate a lease early where second hand smoke is making affecting habitability.
Facts: Does an apartment landlord/complex have any liability towards a specific tenant (here a 21 yr old mother with a 1 yr old infant who requested a non-smoking unit – but not in lease) where the unit is suffering from the intrusion of second hand smoke from 1) a central air condition system, 2) from smokers in the hallways, and 3) smoke in the existing carpets (all three conditions are present)? If so, does that constitute a breach of habitability under the lease and the requirements F.S. 83.51, in particular by means of any applicable health codes?
Any thoughts would be welcome.
Neil
<image001.jpg>
Neil B. Shoter
Partner / LEED Accredited Professional
Shutts & Bowen LLP
CityPlace Tower, 525 Okeechobee Blvd, Suite 1100 | West Palm Beach, FL 33401
Direct: (561) 650-8535 | Fax: (561) 822-5525
E-Mail | Biography | V-Card | Website
IRS CIRCULAR 230 NOTICE: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated,any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.
The information in this email transmission is privileged and confidential. If you are not the intended recipient, nor the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any dissemination or copying of this transmission (including any attachments) is strictly prohibited. If you have received this email in error, please notify the sender by email reply.
Thank you._______________________________________________
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Lainie J. Simon, Esq.
185 NW Spanish River Boulevard
Suite 220
Boca Raton, FL 33431
561.445.1361
561.997.6224(fax)
PRIVILEGE AND CONFIDENTIALITY NOTICE: This e-mail is covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521 and is legally privileged. The contents of this e-mail message and any attachments are intended solely for the party or parties addressed and named in this message. This communication and all attachments, if any, are intended to be and to remain confidential, and it may be subject to the applicable attorney - client and or work product privileges. If you are not the intended recipient of this message, or if this message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this message and its attachments. Do not deliver, distribute, or copy this message and or any attachments if you are not the intended recipient. Do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments. Although this E-mail and any attachments are believed to be free of any virus or other defect that might affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by the sender for damage arising in any way from its use.
Ê
May not be a bad idea to get witnesses (neutral if possible like a property
inspector or a Realtor) to sign affidavits which attest to the odor in the
leased space and attach those to the default notice to landlord.
Andrew F. Garofalo
Attorney at Law | Board Certified in Real Estate Law
Garofalo Law Office P.A.
7401 Wiles Road, Suite 319 | Coral Springs, FL 33067
T: (888) 658-8686 | F: (888) 658-7360
www.garofalolaw.net http://www.garofalolaw.net/
The information in this communication (including any attachments) is
privileged and confidential. If you are not the intended recipient, nor the
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you.
From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Lainie J. Simon
Sent: Thursday, April 25, 2013 10:00 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Residential lease issue- second hand smoke
Yes I have gotten (a client) out of a lease for that reason. Sent the
notice saying that they had to fix it, pursuant to statute, and they cleaned
carpet but it wasn't enough, and we terminated. They did not go after the
tenant. We had many people who would have testified to the odor and "feel"
of the smoke constantly intruding into the apt. As to "liability" for
damages, never pushed that far. In addition, several years ago my inlaws
walked out of a seasonal lease in Boynton because of the smoke and prior
presence of a dog; landlord threatened, I threatened back, and nothing came
of it.
I am also aware of people in condo/coops who were able to force the
management to filter a/c systems in buildings and improve weather stripping
around indoor hallway doors. I believe there is recent case law in NY about
this.
On Apr 25, 2013, at 9:32 AM, Neil B. Shoter wrote:
Has anyone dealt with issues of second hand smoke/indoor air quality as
grounds to terminate a residential lease?? A pro bono matter brought to
my attention on behalf of a residential tenant question whether a
residential tenant has grounds to terminate a lease early where second hand
smoke is making affecting habitability.
Facts: Does an apartment landlord/complex have any liability towards a
specific tenant (here a 21 yr old mother with a 1 yr old infant who
requested a non-smoking unit but not in lease) where the unit is suffering
from the intrusion of second hand smoke from 1) a central air condition
system, 2) from smokers in the hallways, and 3) smoke in the existing
carpets (all three conditions are present)? If so, does that constitute a
breach of habitability under the lease and the requirements F.S. 83.51, in
particular by means of any applicable health codes?
Any thoughts would be welcome.
Neil
<image001.jpg>
Neil B. Shoter
Partner / LEED Accredited Professional
Shutts & Bowen LLP
CityPlace Tower, 525 Okeechobee Blvd, Suite 1100 | West Palm Beach, FL 33401
Direct: (561) 650-8535 | Fax: (561) 822-5525
mailto:NShoter@shutts.com E-Mail |
http://www.shutts.com/attorneys-Neil-Shoter.html Biography |
http://www.shutts.com/vcard-181.vcf V-Card | http://www.shutts.com
Website
IRS CIRCULAR 230 NOTICE: Pursuant to recently enacted U.S. Treasury
Department Regulations, we are now required to advise you that, unless
otherwise expressly indicated,any federal tax advice expressed above was
neither written nor intended by the sender or this firm to be used and
cannot be used by any taxpayer for the purpose of avoiding penalties that
may be imposed under U.S. tax law. If any person uses or refers to any such
tax advice in promoting, marketing or recommending a partnership or other
entity, investment plan or arrangement to any taxpayer, then the advice
should be considered to have been written to support the promotion or
marketing by a person other than the sender or this firm of that transaction
or matter, and such taxpayer should seek advice based on the taxpayer's
particular circumstances from an independent tax advisor.
The information in this email transmission is privileged and confidential.
If you are not the intended recipient, nor the employee or agent responsible
for delivering it to the intended recipient, you are hereby notified that
any dissemination or copying of this transmission (including any
attachments) is strictly prohibited. If you have received this email in
error, please notify the sender by email reply.
Thank you._______________________________________________
landten mailing list
landten@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/landten
Lainie J. Simon, Esq.
185 NW Spanish River Boulevard
Suite 220
Boca Raton, FL 33431
561.445.1361
561.997.6224(fax)
PRIVILEGE AND CONFIDENTIALITY NOTICE: This e-mail is covered by the
Electronic Communications Privacy Act, 18 U.S.C. 2510-2521 and is legally
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- client and or work product privileges. If you are not the intended
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Ê
HERE'S A FLORIDA COUNTY COURT CASE:
In the case Merrill vs. Bosser, 12 Fla. L. Weekly Supp. 885b (2005), Judge
Lee of Broward County held that a condominium unit owner was responsible for
damages suffered by another unit owner caused by the effects of secondhand
smoke. The facts of the case revealed that defendant unit owner leased his
unit to a tenant who was a heavy smoker. The smoke seeped into the
plaintiffs unit who lived below causing severe medical issues for plaintiff
and her family. The lawsuit was brought under the theories of trespass,
common law nuisance and breach of covenant of quite enjoyment. The plaintiff
was successful on all three theories. Regarding the breach of the covenant
of quiet enjoyment, the Court compared the situation to a landlord-tenant
case where one party interferes with another partys use of a property to a
substantial degree. Damages were awarded on the basis of medical expenses,
plaintiffs loss of the use of the premises and remedial expenses. From
this case, there could possibly be landlord liability for failure to control
secondhand smoke from seeping into other tenants units or the common areas
and thereby causing injury.
It seems to me that if landlord chooses to designate a building or a floor
as a non-smoking area, and a tenant signs of lease agreeing not to smoke or
permit others to smoke in the unit and stipulating to the fact that doing so
would constitute improper conduct under Florida statute 83.56 addressable by
a seven-day cure notice, the landlord would be in an excellent position to
evict if necessary.
Jeff
Jeffrey R. Mazor, Esq.
J. R. Mazor & Associates, P.A.
Presidential Circle Building
4000 Hollywood Blvd., Suite 265-s
Hollywood, FL 33021
Phone: 954-962-3500
Fax: 954-962-3560
Email: JMazor@Mazor.com
-----Original Message-----
From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Andrew F.
Garofalo
Sent: Thursday, April 25, 2013 10:39 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Residential lease issue- second hand smoke
May not be a bad idea to get witnesses (neutral if possible like a property
inspector or a Realtor) to sign affidavits which attest to the odor in the
leased space and attach those to the default notice to landlord.
Andrew F. Garofalo
Attorney at Law | Board Certified in Real Estate Law
Garofalo Law Office P.A.
7401 Wiles Road, Suite 319 | Coral Springs, FL 33067
T: (888) 658-8686 | F: (888) 658-7360
www.garofalolaw.net http://www.garofalolaw.net/
The information in this communication (including any attachments) is
privileged and confidential. If you are not the intended recipient, nor the
employee or agent responsible for delivering it to the intended recipient,
you are hereby notified that any dissemination or copying of this
communication (including any attachments) is strictly prohibited. If you
have received this communication in error, please notify the sender. Thank
you.
From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Lainie J. Simon
Sent: Thursday, April 25, 2013 10:00 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Residential lease issue- second hand smoke
Yes I have gotten (a client) out of a lease for that reason. Sent the
notice saying that they had to fix it, pursuant to statute, and they cleaned
carpet but it wasn't enough, and we terminated. They did not go after the
tenant. We had many people who would have testified to the odor and "feel"
of the smoke constantly intruding into the apt. As to "liability" for
damages, never pushed that far. In addition, several years ago my inlaws
walked out of a seasonal lease in Boynton because of the smoke and prior
presence of a dog; landlord threatened, I threatened back, and nothing came
of it.
I am also aware of people in condo/coops who were able to force the
management to filter a/c systems in buildings and improve weather stripping
around indoor hallway doors. I believe there is recent case law in NY about
this.
On Apr 25, 2013, at 9:32 AM, Neil B. Shoter wrote:
Has anyone dealt with issues of second hand smoke/indoor air quality as
grounds to terminate a residential lease?? A pro bono matter brought to
my attention on behalf of a residential tenant question whether a
residential tenant has grounds to terminate a lease early where second hand
smoke is making affecting habitability.
Facts: Does an apartment landlord/complex have any liability towards a
specific tenant (here a 21 yr old mother with a 1 yr old infant who
requested a non-smoking unit but not in lease) where the unit is suffering
from the intrusion of second hand smoke from 1) a central air condition
system, 2) from smokers in the hallways, and 3) smoke in the existing
carpets (all three conditions are present)? If so, does that constitute a
breach of habitability under the lease and the requirements F.S. 83.51, in
particular by means of any applicable health codes?
Any thoughts would be welcome.
Neil
<image001.jpg>
Neil B. Shoter
Partner / LEED Accredited Professional
Shutts & Bowen LLP
CityPlace Tower, 525 Okeechobee Blvd, Suite 1100 | West Palm Beach, FL 33401
Direct: (561) 650-8535 | Fax: (561) 822-5525 E-Mail
mailto:NShoter@shutts.com | Biography
http://www.shutts.com/attorneys-Neil-Shoter.html | V-Card
http://www.shutts.com/vcard-181.vcf | Website http://www.shutts.com
IRS CIRCULAR 230 NOTICE: Pursuant to recently enacted U.S. Treasury
Department Regulations, we are now required to advise you that, unless
otherwise expressly indicated,any federal tax advice expressed above was
neither written nor intended by the sender or this firm to be used and
cannot be used by any taxpayer for the purpose of avoiding penalties that
may be imposed under U.S. tax law. If any person uses or refers to any such
tax advice in promoting, marketing or recommending a partnership or other
entity, investment plan or arrangement to any taxpayer, then the advice
should be considered to have been written to support the promotion or
marketing by a person other than the sender or this firm of that transaction
or matter, and such taxpayer should seek advice based on the taxpayer's
particular circumstances from an independent tax advisor.
The information in this email transmission is privileged and confidential.
If you are not the intended recipient, nor the employee or agent responsible
for delivering it to the intended recipient, you are hereby notified that
any dissemination or copying of this transmission (including any
attachments) is strictly prohibited. If you have received this email in
error, please notify the sender by email reply.
Thank you._______________________________________________
landten mailing list
landten@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/landten
Lainie J. Simon, Esq.
185 NW Spanish River Boulevard
Suite 220
Boca Raton, FL 33431
561.445.1361
561.997.6224(fax)
PRIVILEGE AND CONFIDENTIALITY NOTICE: This e-mail is covered by the
Electronic Communications Privacy Act, 18 U.S.C. 2510-2521 and is legally
privileged. The contents of this e-mail message and any attachments are
intended solely for the party or parties addressed and named in this
message. This communication and all attachments, if any, are intended to be
and to remain confidential, and it may be subject to the applicable attorney
- client and or work product privileges. If you are not the intended
recipient of this message, or if this message has been addressed to you in
error, please immediately alert the sender by reply e-mail and then delete
this message and its attachments. Do not deliver, distribute, or copy this
message and or any attachments if you are not the intended recipient. Do not
disclose the contents or take any action in reliance upon the information
contained in this communication or any attachments. Although this E-mail and
any attachments are believed to be free of any virus or other defect that
might affect any computer system into which it is received and opened, it is
the responsibility of the recipient to ensure that it is virus free and no
responsibility is accepted by the sender for damage arising in any way from
its use.
Ê
Agree that Google Scholar is a great place to start, I think many of our colleagues are unaware of it. Never have dealt with the second hand smoke issue but very interesting topic.
Alberto M. Cardet, P.A.
1330 Coral Way #301
Miami FL 33145
305-403-7783
305-403-7824 (fax)
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Eric.Rapkin@akerman.com
Sent: Thursday, April 25, 2013 9:59 AM
To: landten@lists.flabarrpptl.org
Subject: Re: [RPPTL LandTen] Residential lease issue- second hand smoke
I find that a great place to start research is Google Scholar. I searched "'second hand smoke'" habitability" and it looks like there are a bunch of articles and cases on the topic, for example:
http://scholar.google.com/scholar_case?case=5728922745529120095 http://scholar.google.com/scholar_case?case=5728922745529120095&q=%22SECOND+HAND+SMOKE%22+HABITABILITY&hl=en&as_sdt=2,10 &q=%22SECOND+HAND+SMOKE%22+HABITABILITY&hl=en&as_sdt=2,10
http://tobaccocontrol.bmj.com/content/13/suppl_1/i61.short
Eric D. Rapkin
Akerman Senterfitt | 350 East Las Olas Boulevard | Suite 1600 | Fort Lauderdale, FL 33301
Dir: 954.759.8962 | Main: 954.463.2700 | Cell: 305.343.6129 | Fax: 954.847.5350
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Andrew Garofalo
Sent: Thursday, April 25, 2013 9:46 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Residential lease issue- second hand smoke
No experience on that issue. Will probably be hard to prove since it is not something you can document with a photo for example. If an air quality test can be done that would detect the second hand smoke the tenant should have it done.
Andrew Garofalo
Board Certified Real Estate Attorney
Garofalo Law Office P.A.
888-658-8686
www.garofalolaw.net http://www.garofalolaw.net
Sent from my mobile phone.
On Apr 25, 2013 9:34 AM, "Neil B. Shoter" <NShoter@shutts.com mailto:NShoter@shutts.com > wrote:
Has anyone dealt with issues of second hand smoke/indoor air quality as grounds to terminate a residential lease?? A pro bono matter brought to my attention on behalf of a residential tenant question whether a residential tenant has grounds to terminate a lease early where second hand smoke is making affecting habitability.
Facts: Does an apartment landlord/complex have any liability towards a specific tenant (here a 21 yr old mother with a 1 yr old infant who requested a non-smoking unit – but not in lease) where the unit is suffering from the intrusion of second hand smoke from 1) a central air condition system, 2) from smokers in the hallways, and 3) smoke in the existing carpets (all three conditions are present)? If so, does that constitute a breach of habitability under the lease and the requirements F.S. 83.51, in particular by means of any applicable health codes?
Any thoughts would be welcome.
Neil
Neil B. Shoter
Partner / LEED Accredited Professional
Shutts & Bowen LLP
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