Can a landlord withhold my security depositif I never moved in due to cigarette smoke?
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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 13 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.
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