Attorney's only please: Would I be able to win if I sued over this smoke issue?

Question

Would I be able to win if I sued over this smoke issue?
I moved into an apartment in January. As soon as I did I noticed I smelled cigarette smoke often. I'd open the doors to see if someone was smoking outside so I could ask them to go somewhere else, but I never saw anyone. I finally came to the conclusion it was seeping in from a neighboring unit. To make my story not so long, lets just say I made much correspondence back and forth with the apartment complex, and the final outcome was that they would not do anything for me. They said I could live with it or move out. Well, of course I had to move out because not only is it dangerous to my and my husbands health, but I had a 5 month old baby that could die from sids because of it. I have plenty of proof to back up how unsafe second-hand smoke is, esspecially to children, my problem is I don't have any physical proof that there actually was second-hand smoke getting into my apartment (how could you?) If I take this to small claims court, can I win? Any advice? Please, serious only

I'm suing for moving fees and rent I paid and didn't get to live in the apartment, among other smaller things like account start up and close fees.

There is a part in the lease that states "no tenant shall engage in activity that will effect the safety or comfort of another tenant" and also, whether stated or not, the apartment has a duty to, not only give me a habitable apartment, but a safe one for me as well. The fact that second-hand smoke kills is just that, fact. The ONLY issue I have is trying to prove that there was actually a problem. The maintenence guy that I spoke with one of the times I called told me the same people to live in this apartment prior to me had the same complaint of smoke, but, conveinently, he now doesn't remember that conversation. I can prove I was calling back and forth with the apartment to try to resolve the issue, I know that evidence is not so important in small claims court because it is informal, so I'd rather have advice from an attorney who could tell me whether or not my correspondence was enough to say there was probably an issue.

What part of "attorney's only please" did you not understand? I don't need your two cents. I asked what I asked, and if you don't have an answer DON'T ANSWER. You don't know the details and have no clue what you are talking about so HOW DARE YOU judge me? Get a life.

You know what. My husband fought for our county, nearly died several times. He works full time, goes to school full time, I work from home and raise our daughter. Thanks to me trying to PROTECT my daughter and my family, it cost us nearly $3000. I moved out as soon as I could, I spent a month going back and forth with the apartment, them telling me one thing and then another, until finally they told me that they wouldn't do anything right at the end of the month, so I paid for like two months rent, plus all the "administrative fees" that they charged at move in and staring up all utilities, and I had to move in like 48 hours, which cost me a lot to hire movers and I STILL had to do most of the packing and moving myself. It has not only cost me much time, but tons of stress. I just want my money back that they took and that they caused me to be charged. Don't judge a situtation when you don't know the facts.

Fozio, I appreciate that you are trying to help. One thing I do feel I must point out is that it is NOT a right of a smoker to smoke. There is no law on the books anywhere, anyhow, so you are wrong there. If it were a right they wouldn't be able to enforce smoking bans like they have in so many cities now. The simple facts are, they have no given RIGHT to smoke, it's just not illegal for them to do so...yet...although some places it is against the law for them to smoke. I, however, do have a right to breath clean air, and to live in a safe environment. Not only was it stated in the lease that I was to have a safe place, but reguardless, the apartment has the DUTY and legal obligation to ensure my safety. I have since spoken with an attorney who has verified all this information with me, and cases similar have one (some also have lost) BUT in my case, which goes back to my question...I will continue in another detail, I'm almost out of characters...

...Because I don't have any solid PROOF, I probably would not win. I have been told there is a machine now, very expensive to rent, but if put in a building and monitored over a time period, it will determine the amount of second-hand smoke that you are getting. I, for one, could not afford it, and I also no longer live at the apartment. I'm pretty much out 3,000, and although it very much upsets me that this apartment gets to keep my money when they were in the wrong, I guess it's a small price to pay to ensure my family, and my baby, are safe. If ANYONE else is experiencing problems like this, YOU DO HAVE RIGHTS! You just need to be able to prove that there is smoke getting into your apartment. Talk to an attorney...one that knows what they are talking about anyway, not like these others who responded to mine, you can get out and save yourself and your family, and if you prove it and you don't have a lousy judge, you should get your money back to. To all you selfish smoker...

your day will come, and sooner then what you think, those death sticks kill you faster then they will the people around you. Please take a minute to realize there is more then just you in this world and that your smoking, even in your "own" home is dangerous to other people then just yourself. Do the right thing for the people around you and YOURSELF and quit, there is no good side effect to smoking.

Answer 1

She said attorneys only and yes while i am not an attorney I just have to say that all of you that gave rude or abusive answers are all a bunch od ar**holes. Theres just no need for it. Get a f**kin* life and let the girl get a proper answer. You should all be banned and thoroughly ashamed of yourselves and if you are just a bunch of kids then your parents obviously need to be monitoring you all.

Answer 2

Attoreny here. I am afraid you do not have a case. This man has the right to smoke - it is a basic human right guranteed by international law, which overrules the laws of the country, state and the rules of the building of course.

The fact that smoke for some reason reaches you is not his fault. It is primarily the fault of the apartment architect if built with faulty infrastructure or due to erosion etc and this can not be blamed on anyone. You should have found out the reason behind the transfer of smoke and fixed it.

To sure you have to prove negligence and it surely is not the smoker, could be the governing body of the complex or the architect. You also need to prove damaga to the health of any family member due to your neighbours smoking and to be honest, this is an impossible task cause it can be blamed on pollution etc.

Sorry, but If I were you, I would forget about it and move on. Next time make sure you include a penalty clause in your lease contract.

Answer 3

No you wouldn't win; 1. The apartment can say, why didn't you smell it when you inspected it prior to renting? Even if you found the place in an online listing it's up to you to inspect it Before you move in! 2. You have no proof the smoke was coming from someone in the building or wherever! 3. The apartment can claim you are just too sensitive this is what you appear to me, cigarette smoking is not illegal so no body was breaking the law! 4. You can't sue for future damages like my baby might get cancer from me living here! If you were awarded say $10,000 and in 20 years your baby didn't get cancer would ya repay, plus interest, the ten grand? There is also no way to prove the cancer came from you living there! It maybe due to polution or w/e! 5. The apartment has better lawyers than you'll get! 6. The extra money you paid to have your stuff moved is yours the building isn't responsible for that!

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Answer 4

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Answer 5

If second hand smoke is such a personal danger to you and your family, as in you have a "5 month old baby that could die from sids because of it", why didn't you rent in a building where smoking is prohibited? A good mother would never place her child in mortal danger the way you clearly did. Didn't you ask about the smoking policy before you rented?

I have severe asthma, and the last three buildings I have lived in have all been "smoke free" per my lease. I can't live in a place where there is smoke, so I make damn sure I don't.

I know that if the members of my family were so dramatically affected by second hand smoke and as close to deaths door because of it as you claim your family to be, I certainly would not have moved into a building where smoking was allowed. Why did you?

You aren't going to win. It is absolutely outrageous of you to move into a building where an activity (smoking) is allowed, and then expect others to conform to your standards and lifestyle choices. Smoking is not prohibited under your lease, nor is it against the law. You expected your landlord to do the impossible, and now unfairly seek to have them pick up the tab for your poor choice of residence.

You are interpreting your lease in your favor to fit your particular issue (secondhand smoke) and not the issues that would be considered reasonable (loud parties until 3:00 am, etc) and that the lease was intended to cover. Smoking is not prohibited under your lease. No one promised you that your unit would be airtight. Being a city gal and having lived in apartments most of my life, I have smelled a whole lot of things I could have done without. Smells are something you have to deal with when you live in an apartment. And if you live in a building where smoking is allowed ... common sense tells you that you are going to smell cigarette and cigar smoke at some point.

No one is going to disagree that secondhand smoke is dangerous. We all know it is. The point that you fail to see is that at no time did your landlord promise you a smoke-free environment, and you now wish to have them penalized for not providing something they never agreed to provide in the first place. Your argument is based on something that has nothing to do with the situation. Your landlord never agreed to provide you with a smoke free environment, so the fact that secondhand smoke is dangerous is beside the point.

Unless you live in Utah, where secondhand smoke is considered a nuisance if it drifts into your apartment or condo more than once per day for two weeks straight (I'm not making that up, it's the standard the court ruled), you are s.o.l.

In Massachusetts in 1991, there was a case called Lipsman vs. McPherson, the court ruled that the "annoyance" of the smoke from 3 to 6 cigarettes a day is NOT a nuisance, and that the standard for nuisance was a "substansial effect on an ordinary person". They agreed that the Plaintiff in this case was "particularily sensitive to smoke", but that "an injury to one who has specially sensitive characteristics does not constitute a nuisance".

You are that "specially sensitive" person in this case.

Options were and are available to you. It is YOUR responsibility to avail yourself of those options. Landlords have the right to make their property smoke free, either in whole or in part. The property you rented was NOT. You knew that when you rented it.

"My husband fought for our county, nearly died several times. He works full time, goes to school full time, I work from home and raise our daughter." So what sweetie. The world does not have to bend to your wishes. Next time move to a smoke-free building.

Answer 6

Sorry, however you lose this one. When you hire an rental on your residing quarters, you're taking it area to environmental and 3rd--occasion impacts. That could incorporate the cars riding beyond the constructing, belching fumes. That could additionally incorporate any factories within the neighborhood, spewing smoke. And it could even incorporate drug buyers within the neighborhod, or hookers, and many others. The landlord can not make sure the sanctity of the atmosphere wherein the constructing, tricky, or townhouse is placed, any longer than he can make sure that the elements external will regularly be great for you. GROW UP.

Answer 7

You asked this question before, except that now you say "Attorneys Only".

Well, refer to my other answer.

All I can tell you is that the law is a balancing act--look at the "Scales of Justice".

The landlord rents you a Space, with rooms, plumbing, electricity, etc.

He/they do not rent to you some idyllic place, free of floating viruses, cold germs, environmental smog, hay fever pollen, automobile exhaust fumes, global warming, neighborhood brats spraying grafitti, barking dogs, cars honking their horns, neighbors having a fight, screeching alley cats, animal dander, ants and bugs coming around, mosquitoes in August,
cicadas every seventeen or thirteen years, lightning storms, tornadoes, ice in the winter, or the possibility of getting mugged in walking around the neighborhood.

Again , GROW UP, or your baby will be three times as neurotic as you are.

Answer 8

You can break your lease and move, and get your deposit back. You may have to sue to get it back, but that's all you can do.

Answer 9

oh just get over it and get a real life.

Answer 10

NO