Can a landlord withhold my security depositif I never moved in due to cigarette smoke?

Get Legal Help Today

 Secured with SHA-256 Encryption

Can a landlord withhold my security depositif I never moved in due to cigarette smoke?

I signed a 1 year lease and put down a security on an apartment. I was informed that they do not enforce a non-smoking policy but was also told that no one in the building smokes. When I went to see the apartment for a second time, it reeked of cigarette smoke. I am asthmatic and decided not to move in. I also later found out that a friend lives there and is experiencing lung problems because of the smoke. Can the management company legally keep my security?

Asked on April 4, 2011 under Real Estate Law, New York

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

If the landlord had a no-smoking policy which was violated, you would stand in much better shape--the landlord itself would have violated lease provisions (or house rules incorporated into the lease), which might give you grounds to terminate without penalty. But when they say there is no non-smoking policy, the landlord is therefore not responsible for if someone--tenants, guest, prior tenants, etc.--smoked. Under those circumstances, unless you said prior to signing the lease that you would not move in if there was any smoking (in which case, the landlord's statement that there was not could possibly rise to the level of fraud), it is likely the case that the presence of smoke will not give you grounds to terminate; that means you can be held liable for all rent due under this lease, and one remedy the landlord has is to apply your security deposit to rent due.


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

Get Legal Help Today

Find the right lawyer for your legal issue.

 Secured with SHA-256 Encryption