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Can I break my lease due to marijuana smoke from neighbor's apartment causing me difficulty breathing?

Garden Grove, CA |

I live in California where medical marijuana is legal and my downstairs neighbors (3 of them) all smoke pot, and they all have medical marijuana cards. If they do it outside, it comes through my windows but if they do it inside, it comes through the vents, so there's no escape. I'm constantly coughing, choking and gasping for air and on many occasions I actually have to leave my apartment just to breathe. I talked to my neighbors to try to come to an understanding but they told me I'll "just have to live with it." My apartment manager doesn't seem to believe me and told me I hurt their feelings when I complained about it. Since I complained, it's gotten even worse! So what now? I don't want to leave but if I find a new apartment, can I move without giving the required 30-day notice?

I don't know if it makes any difference, but I'm on a month-to-month rental agreement and according to the rental agreement, I have to give a 30-day notice before vacating. I just don't think I can stand another 30 days of this torture! As I said, I really don't want to move, since my apartment is absolutely perfect in every way EXCEPT the marijuana smoke. So moving is my last resort, but I need to know if I can do it legally without giving a 30-day notice. What I'd rather do is stay where I am, so is there some way I can get the apartment manager to actually do something other than scold me for hurting the pot-smokers' feelings?

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Attorney answers 1


The problem you are facing is that smoke is smoke and knows no real boundaries. The fact that the issue involves your neighbors "use" of medical marijuana does not overcome the fact that their conduct is interfering with your lawful and appropriate use of your rental unit. This is a violation of what is known as the implied covenant of "quiet enjoyment" that is part of residential rental agreements.

My strongest recommendation is that you give notice and vacate the unit even if this means staying some where else until you actually surrender the keys. You may also want to negotiate an earlier move-out date in exchange for surrendering your security deposit.

Once you have moved out, you may then consider suing the landlord for breaching the implied covenant of quiet enjoyment by failing to take steps to protect you from the neighbors' smoking or rather their smoke period. It is hard to say if your claim will succeed but the landlord may agree to pay your reasonable moving expenses, refund your security deposit and provide you with a partial rent abatement, particularly if you have medical documentation of your allergy to smoke and your breathing issues.

I also recommend that you consult a personal injury attorney and a housing law attorney for a more complete understanding of your rights and interests in this matter.

This is not a substitute for a consultation with an attorney with a background in housing and personal injury law.

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