If your smoking is excessive, you could be putting yourself at risk of eviction. 

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Question:

I sometimes smoke marijuana in my apartment, and recently, one of my neighbors complained to me about the smell. If they report me to the landlord, could I get evicted, even though pot is now legal in New York State?

Answer:

Even though the possession of marijuana is now legal in New York State (under certain conditions), if your smoking is creating a nuisance, you could have problems, says Sam Himmelstein, a lawyer who represents residential and commercial tenants and tenant associations. 

New Yorkers are now permitted to possess up to three ounces of cannabis and 24 grams of cannabis concentrate. Before legalization, smoking marijuana in your apartment could be deemed a nuisance to your neighbors. (Hoarding, engaging in other illegal activities like assaulting or harassing neighbors, and vandalism also fall under the category of “nuisance,” and are possible grounds for eviction.)

But now, smoking marijuana in your apartment is much like smoking cigarettes—a legal activity conducted in the privacy of your home. Therefore there may be little a landlord can do to stop you.

“The basis of old decisions that distinguished cigarette smoke from pot smoke was that pot was illegal to possess, and most leases say that you can’t engage in illegal activity,” Himmelstein says. “Now marijuana is like cigarettes, in that it’s legal, and if there is smoke permeating from one apartment to another, it’s the landlord’s obligation to deal with it, not the tenant’s duty to stop smoking.”

The issue you potentially could face is not about the legality of smoking marijuana at home, but about whether your smoking is creating a nuisance for your neighbors.

“There are cases in which tenants created offensive odors in the building, and the courts said it rose to the level of a nuisance,” Himmelstein says. “Whether the smell or presence of marijuana smoke is so offensive as to constitute a nuisance is new ground, so we’re going to have to see how the courts deal with it.”

Typically, landlords are reluctant to bring these kinds of cases to court, but it ultimately depends on how bad the smell is, how frequently you are smoking, and how much your neighbors are complaining. To mitigate the odor and address your neighbor’s complaint, you might want to purchase air purifiers or exhaust fans to help clear the smell of smoke from your apartment.

You may be forbidden from smoking at all if your lease includes a clause stating that you can’t smoke in the apartment, or if your building has declared itself smoke-free. Market-rate tenants have to follow any updated smoking policies, and it’s illegal for anyone to smoke in common areas of NYC buildings.

However, if the building goes smoke-free after you move in and you are rent-stabilized, you are protected, because landlords are not permitted to alter the terms of the original stabilized lease.

But there’s a potential snag in this rule: “If a rent-stabilized tenant moved in before it was legal to smoke pot, and the landlord enacts a no-smoking policy after pot is legalized, is that really restricting the rights of the tenant if they couldn’t smoke pot before?” Himmelstein says. “It’s an open question, and the courts will have to sort this out if landlords do bring cases.”

Himmelstein cites a case his firm tried several years ago, in which a tenant who smoked marijuana regularly, to the extent that neighboring units constantly smelled  it, lost his eviction trial and appeal.

“The neighbor who made the complaint was not necessarily against smoking pot—he just didn’t want the smell permeating his apartment,” Himmelstein says.

The degree to which your smoking impacts others, then, could play a role in the likelihood that you get evicted.

Himmelstein compares the issue to noise complaints.

“In urban environments, there’s a certain amount of noise you’re expected to tolerate, like people playing instruments, or children running across the floor,” he says. “But you don’t have to put up with someone playing club music at 3 a.m.”

Similarly, it’s reasonable to expect that you might have neighbors who smoke and that you’ll smell the odor occasionally, but not that your apartment will reek of marijuana at all hours. It is also possible that a court might sustain a nuisance claim if there are children or tenants with respiratory issues in the neighboring apartment, or if the neighbors complain that the smoke intrusion is so strong that they are experiencing a high. 

If you land in housing court over your smoking, a judge will likely grant you an opportunity to address the problem before giving you the boot.

“If the landlord brought this case and won, the court would probably give a judgement but say that if the tenant cures the problem by stopping smoking, then they won’t be evicted,” Himmelstein says.

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Sam Himmelstein, Esq. represents NYC tenants and tenant associations in disputes over evictions, rent increases, rental conversions, rent stabilization law, lease buyouts, and many other issues. He is a partner at Himmelstein, McConnell, Gribben, Donoghue & Joseph in Manhattan. To submit a question for this column, click here. To ask about a legal consultation, email Sam or call (212) 349-3000.

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