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(NJ) Cigarette smoke penetrates unit above, nuisance (by legal def.), breach of quiet Enjoyment covenant, grounds for eviction?

Edgewater, NJ |

Residential building - tenants contention:
Both tenants' lease prohibits, not smoking, but "odors" and any other nuisance/ disturbing the peace and quiet enjoyment of others specifically.
Smokers moved-in after non-smokers.
Attempts to seal cracks in the units failed as the smoke still travels up and penetrate unit above.
Judges in CA, UT and NY among others, have ruled favorably when a non-smoking party brought suit against landlord and/ or smokers in L/T courts and small claim courts in a similar context; what about NJ?

How can the LL be convinced to take action beyond relaying the complaints to the smokers verbally? What legal action can the landlord take to 1) make the smokers stop or 2) failing that, evict them?
What are the non-smokers' best options aside from moving?

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Attorney answers 2


Answer: While you can sue the landlord and tenant for breach of the use and quiet enjoyment, your previous communications indicated that you did not want to sue the landlord. Also, while it is a nuisance, your case would be much stronger if you have an allergy or developed illness from the smoke.

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Thank you for answering. I have a "good" relationship with the LL and the smokers' behavior is harmful but not the LL's fault. If it is a nuisance, isn't that enough to remove them? There is language in their lease we can use (as pointed out in the OP above). It would seem LLs put things in their lease which cannot be enforced in court; and this is one of them?

Douglas Wayne Jones Jr

Douglas Wayne Jones Jr


The Landlord would have to serve the proper notice upon the Smoking Tenants. Thereafter, if they did not stop, the landlord could evict. You as the Tenant do not have the right to evict. However, if you want to claim that your leasehold has been negatively affected by the smoking, you need to have written notice to the landlord of the nuisance which they then fail to act upon. If no solution is achieved, then your law suit would be against both the landlord and tenant for creating and allowing the nuisance. You cannot sue just the tenant because the landlord is an essential party to the whole incident.


Depending on your lease, you might be able to sue the landlord, for breach of use and quiet enjoyment of your tenancy, and nuisance as my colleague indicates. Call an attorney, provide all of the specific facts relative to your matter, a copy of your lease, as well as your current health situation, to see what else you can do.

This office does not represent you. This email does not form any attorney / client relationship. In order to form an attorney client relationship with our office, our office requires both a signed retainer and payment of any initial fee. Further, since we have very limited facts relative to your matter, you should not rely on any of the general advice set forth within our answer. I would strongly recommend that you speak with counsel regarding your issue.