Smoky The Guest

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I live in a rent controlled, 4 unit building owned by a regular person (not, like, CitiApartments or anything). I’m the newest tenant there, I’ve been here for 6 years, and everyone else has been here 20 or so more. Everyone is really nice, but I’m still the newbie. I like them all a lot!

But! My upstairs neighbor has started dating a guy, in fact, he’s moved in. And I’m both just pettily annoyed by him, and sometimes kind of scared of him.

Here’s the petty stuff: he smokes, constantly. And he’s unemployed, and here all the time (I work from home, so I promise I’m not judging the being at home all day thing, I’m just providing context), smoking. I keep all my windows on their side of the building closed, and the hall is smoky (their front door has a decent sized gap beneath it). And my apartment still smells smoky, as does my clothes, towels, etc.

Ideally, my first step would be to talk to him, I know. But, here’s the other thing, he’s a big, all day long drinker, and he scares me a little. He’s kind of a bully, and gets aggro really easily.

So maybe the solution is to talk to my landlord? But I worry about involving her because I’m concerned that by letting him move in, my neighbor is in violation of her lease, and I don’t want my landlord to use this situation to evict her.

So, here’s my first question: how would you advise me to approach the smoking thing, is there any good way (Maybe you’re just going to tell me to “suck it up, princess,” and I can accept that)? And, second, if I were to pass the buck to my landlord, are there laws that will protect my neighbor and that allow her to have him as a permanent guest? If my choices are to live with the smoke and or to lose my neighbor, I’ll live with the smoke.

Wow, you’ve just covered two of my least favorite issues to discuss!

The first is smoking. Caveat: I still practice that nasty habit, much to my chagrin. It is still legal to smoke in your unit, but not in the common areas of a residential building. I, like many tenants advocates, am wary of any law prohibiting smoking in ones apartment because it will provide a pretext for landlords to evict rent controlled tenants.

The second is tenant versus tenant issues. Conflicts between tenants are common, however, unless a given tenant’s behavior is really bad or violent or illegal (i.e. nuisance), again, I don’t think it’s wise to give a landlord a reason to evict rent controlled tenants.

Alright, with that in mind, let’s see if we can figure this out.

You didn’t mention if your neighbor (the lessee) smokes. Maybe this is exactly what she needs to kick this guy in the ass to quit. Maybe this is her ticket to encourage him to look for a job. Believe me, if he’s sitting around the house all day slugging down a twelve pack and smoking a couple of packs of Raleighs, he ain’t lookin’ for work! In fact, she may just be ready to give this guy the boot. Talk to your neighbor. Tell her your concerns. See if you can come to some sort of compromise.

You may even want to introduce her to some guys with jobs who don’t smoke.

I have found that landlords are usually loath to deal with tenant versus tenant disputes. Often there isn’t much they can do; and in some cases siding with a given tenant could make the landlord legally liable to the other. In your case, it doesn’t look like the landlord could articulate a just cause to evict anyway.

You’ve already said you don’t want to present the landlord with the opportunity to evict a long-term tenant. There is no legal construct for “permanent guest.” Many form leases even restrict the number of days that a guest can stay. The boyfriend is likely a subtenant unless he has another place to live. Besides, they could get married or become registered domestic partners to avoid the taint of illegal subletting. Any rumbling from the landlord might accelerate that decision…and you need to show your neighbor why that would be a bad idea.

If you don’t succeed, you may just have to suck it up, Princess.

Crow & Rose's legal practice emphasizes eviction defense, wrongful eviction and other landlord tenant and real property matters.

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