Q: I live in a duplex in northern New Jersey with my spouse and 15-month-old son. Our landlord lives in the unit next door. Whenever we turn on our air-conditioning, an overwhelming smell of marijuana permeates the house. We told our landlord about the odor, but he said he didn’t smell it on his side. Our son has respiratory problems, so we are concerned about the effects this could have on his long-term health. I have also been getting headaches when I enter the house. What should we do?
A: You should not be subjected to pot smoke that compromises your son’s breathing and causes you headaches. These conditions may violate the warranty of habitability, part of the New Jersey’s Anti Eviction Act.
You have two powerful tools: You could break the lease and vacate the apartment, claiming that you’ve been constructively evicted because of the landlord’s failure to maintain the apartment; or you could withhold rent until the problem is corrected, according Francis M. Giantomasi, a landlord-tenant lawyer in the New Jersey office of the law firm Chiesa Shahinian & Giantomasi.
If the landlord sued you for lost rent or filed an eviction claim for nonpayment, you’d have a strong habitability defense, Mr. Giantomasi said. But first, create a paper trail. Document the dates and times you experienced the odor; save medical records; and keep records of your correspondence with the landlord.
Knowing your leverage, have a frank conversation with your landlord. Go into the conversation thinking about your shared interest: You want a habitable apartment; he wants rental income. Assume he’s not intending to harm you — he may even be smoking for medical reasons — but convince him that he is by describing the health impact that the smoke is having on you and your child.
Put the onus on the landlord to find a solution. “Nobody wants to be accused of harming a child,” said Brad Heckman, a professor at New York University’s Center for Global Affairs who specializes in mediation. “Ask open-endedly, ‘What can be done about this?’”
Perhaps he can use air filters, or smoke outside or in a room far from the air-conditioning unit. He may need to evaluate the building’s ventilation system or properly seal holes. You could also contact your community’s health department and request an inspection, which would bolster your paper trail should you ultimately decide to withhold rent or break the lease, and would certainly get his attention.
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