Is this enough to break a lease? (apartments, tenant, evict)

[findingmesomeday]

Here's our situation. We had to sell our house unfortunately because of some devastating financial issues. We live in a small Boston suburb and want the kids to stay in the same schools while we decide how/when we're going to relocate somewhere less expensive. There are not many rentals in this town--especially one that has enough room for 3 kids and us. House prices are high, therefore rents are high, too. This is the Boston area, after all!

Anyway, for one reason or another, we passed on a couple of places and then someone in town told me that someone else was looking to rent his house as they were just finishing up building a new house. We took a look at it and it had plenty of room for all of us. The rent was steep but not out of line for the area. The guy is a "townie" (meaning he was raised here and therefore has connections) and it's clear that when he added on to this house, he did not pull any permits because some things are not to code (they're safe, just not to code). He has an office with a separate entrance but rarely uses it and there's a basement apartment. We knew about the basement apartment. It's illegal as the day is long but he's gotten away with it this long so what are ya gonna do?

Anyway, this guy and his family had a tenant in the basement while they were living there. But the tenant moved out and another one moved in. Nice enough guy but the way the house is laid out, he has access to the office through a set of stairs from his apartment and he started to use it for extra living space. I complained to the landlord who promised me he'd talk to him.

But that's not even the bulk of the problem. The guy smokes. and because the stairs up to his bathroom and then the office are right in back of our kitchen, our entire kitchen smells like smoke and sometimes even most of the first floor. I am a vehement non-smoker. I know the landlord and his family are non-smokers. As I said, I knew there would be a renter but of course, did not ask if he smoked.

Do I have the right to ask the landlord to tell this guy he can't smoke in the house?

We are looking at some other places and might be moving soon but it would mean breaking the lease. That's a whole other story.

[astrogal]

I would say no. It's not your property and the guy was there before you. You have to be careful when sharing a rental like that.

[findingmesomeday]

Yes, it's not our property. No, the guy moved in after us. The basement apt was empty when we moved in.

[nativeDallasite]

Originally Posted by NChomesomeday

Yes, it's not our property. No, the guy moved in after us. The basement apt was empty when we moved in.

Did you know it could potentially not stay empty?

[Magnolia Bloom]

Did the landlord mention the downstairs apartment before you signed the lease? If not, and if you are sure that it is not zoned for a separate apartment, I would write him a nice but formal letter to the effect that, you were not aware that you were renting in a multi-family dwelling and that the new tenant's smoke is entering your home from the stairway. Request that he permit you to break your lease effective ____.

That way, there is a document that "outs" him on the illegal basement apartment and if he says no, you can let him know that you will be exploring your legal options. He should be smart enough to read through the lines to know that it could cost him much more than one tenant if he is found out. Will also be good to have in the event that he does let you out of terms of your rental agreement, but does not return your deposit.

[mead]

I don't know what the situation is like in Boston, but in the NYC area these basement apartments, while completely illegal, are usually very much tolerated (almost encouraged) in the surrounding middle-class areas. Most of the local politicians know that most people would not be able to afford their mortgage payments without a basement apartment because of the high price of real estate. As a result at least in the NYC area the cards are stacked against you concerning basement apartments, because the whole system is setup to make it have the appearance of legitimacy. So if you go and complain to the town or the cops they might not help you because they or their relatives are engaged in the same practice. Its like institutional corruption in a sense.

Now as to the smoke, thats an interesting question. I know that most leases state that the landlord can kick you out for creating smells, but I don't think you can break the lease for the same reason. Plus I don't know if any court would rule that cigarette smoke can be found to be a truly offensive odor, even though I would consider it to be.

[findingmesomeday]

He did mention the basement apartment. Being a townie, I don't think he's too afraid of the dwelling police. It's a small town and who you know counts. He's a contractor and I can tell you from my husband having been in the business even for a short while that nothing he did to that house is code. In fact, he built a new house across town (that's where the family moved) and I can tell you just looking from the outside, that there are some code violations!

At any rate, the basement apt was empty but we knew someone would be moving in. It's a total illegal apt. I had an issue that I had to review with him once about the tenant's access to the office upstairs. The tenant was using the office as additional living space (much nicer than the basement apt) and I'm sure it was with the landlord's knowledge but the clomping up and down the stairs, etc., was too noisy and I complained. He told me he'd take care of it and he has--sort of. It's not totally taken care of.

Now that the weather is getting colder and the windows are closed, the smoke is getting to be an issue. There are two areas where there are doors that have been blocked off but the smoke invades here and my kitchen and the upstairs hallway and even the master bedroom reek. Yes, I am super sensitive. If you came over, you probably would not say "reek" but I have a low tolerance.

I have no problem with breaking the lease if need be (I've got some other things on the tenant that are downright illegal) but we haven't found anywhere to go. If we could, do that, we'd be out.

[sponger42]

The smoke sounds like a health issue. That is more than enough in any state to break a lease. Add on the illegal apartment, and you've got a great court case to get your deposit back as well as get out of any obligations to pay any further rent. However, nobody benefits from going to court, so try some softer measures first:

I suggest you start by talking to the owner and the downstairs tenant. Maybe you can work out some sort of friendly arrangement with fans or smoking outside, or something.

If that doesn't work, I'd move on to asking the owner to let you out of the lease due to health issues with the smoke. Any smart landlord won't try to keep a tenant who doesn't want to stay. Try to negotiate a reasonable compromise for everyone if he wants compensation for breaking the lease, but don't let him take you to the cleaners.

If he still resists or is unreasonable, you should also mention that you didn't realize that basement apartments were illegal, and that the building was not up to code when you moved in, but after doing some research, you've discovered that you are living in a dangerous situation with code violations and illegal tenants, and that you really want to get out of this bad situation. This should be warning enough that keeping you is going to be more trouble for him than it's worth.

As a last resort, you can just skip town. It's easier to ask for forgiveness than permission. Yes, he might be able to litigate against you for the unpaid rent, but thanks to his illegal apartment plus the health and safety hazards to your family, I think he would have a very bad day if he tried to use the legal system to recover lost rent from you. You should read up on your local renter's laws and maybe consult with a lawyer about this option before you try it.

Finally, you could possibly sue to get him to bring the building up to code and evict the illegal smoking tenant. However, this will just create a bad situation and cost everyone involved tons of money, so I'd avoid this option.

Basically, don't do anything that would require more than a free consultation with a lawyer. Even if you're "right", the legal path often leaves you much poorer than all your other options.

Also, take advice you get in here with a grain of salt. It seems like this forum is heavily biased toward landlords.

[findingmesomeday]

Thanks for the post. I haven't said anything to him yet because it's only just gotten cold and the past few nights were the worst. But I"m sure it will continue. As I said, there was another issue with the tenant using the office for extra living space (while endorsed by the landlord, this was not ever spelled out in the contract--he stated office space to be used by him, when necessary during working hours only and never before 8AM and after 6PM M-F). So I knew when I complained about the tenant in the office, he wouldn't give me any trouble. And he didn't. But the tenant, who was friendly with us at first, will now not give us the time of day. I don't want to foster even worse feelings.

The other issue is that we can't find anywhere to go right now. If we want to stay in town, there are no other rentals around at the moment that fit the bill. We did find one next town over but it would probably mean pulling the kids out of school and putting them in that town's schools. While not an issue education-wise--that town has as good, if not even slightly better schools than we do, I hate to do this to my kids. They do know a lot of kids in that town--in fact the HS swim team is combined between the two schools! But I'd rather not have my kids change schools. If we stay here in MA (unlikely if we can avoid it once my oldest graduates in 2009), we'd buy back in our old town. If we leave, it could be as early as about a year from now if the opportunity is right. We've been trying to get out of MA for a few years now. Once my oldests' college apps are in (next Dec/Jan?), my former neighbors have offered to have him stay with them to finish out senior year.

[sponger42]

Better to pull your kids out of school now then have them get lung cancer from secondhand smoke 10 years down the road.

Of course the other tenant is mad at you. I'm sure the landlord promised him he could live in the office, and is now saying that it's all your fault that he had to ask the guy to move out, even when he had promised you something totally different. Sounds like your landlord is a real tool. You should try talking to the guy downstairs and taking the approach that your landlord has screwed you both by promising conflicting things about the office. Maybe he'd be more willing to work with you on the smoke issue and you could work with him on the office deal (maybe he could use it for storage or something, without actually living in there and banging around all the time).

However, smokers tend to feel a bit persecuted in today's world, so he might just dig in and fight you.

If that happens, then to heck with what the new tenant thinks. You were there first, you (probably) pay more, and he's willfully putting your health at risk with his dangerous habit. Jerks like that don't deserve any consideration. Being nice to them gets you nowhere.

Good luck. Hopefully everything can be resolved with courtesy and compromise.