Natural Enemies: Landlord-Tenant Law 101
Of all the relationships created by law, the landlord-tenant relationship is probably the most hostile, yet the most universally experienced. Common sense would dictate that landlords and tenants have a mutual interest in maintaining the property, but in fact their mutual interest seems more to be outwitting each other.
Molly N. is sensitive to smells. Her downstairs neighbor is an ethnic restaurant. Her eyes tear when the cooks slice onions, she coughs when they grill steaks. She has consulted the restaurant owner, contacted various municipal agencies, complained to the landlord.
The landlord-tenant relationship is created by the factual situation of a person or persons ("tenant") occupying property owned by someone else ("landlord"). Although the terms of the occupancy may be governed by a writing ("lease"), the relationship does not require a written agreement. The law creates the relationship, and imposes certain basic terms upon the parties which may be written into a lease, along with terms that only pertain to these premises and these parties. This tenancy, for example, may not be renewable, or it may be cancelled upon the occurrence of a specified circumstance, such as sale of the building.
Molly's landlord refuses to investigate or attempt to abate the condition by which the smells infiltrate her apartment. To add insult to injury, her landlord has threatened her with canceling the lease if she continues to complain to the environmental protection authority.
The essence of the landlord-tenant relationship is the payment of money ("rent") by the tenant in exchange for the right to occupy premises owned by the landlord. Implicit is the "warranty of habitability", that is, the obligation of the landlord to provide, and the reciprocal right of the tenant to expect, that the premises shall be free of vermin, noxious or dangerous odors, disrupting noise, water infiltration, and other conditions that render the premises uninhabitable, such as lack of heat or running water.
Related to the concept of habitability is the right of "quiet enjoyment." If the occupancy is disrupted by circumstances which may be within the landlord's ability to control, the tenant may claim "constructive eviction" and withhold rent (or pay it into an escrow account). "Constructive eviction" means that the landlord's act, or failure to act, can be construed as a deliberate attempt by the landlord to remove the tenant, in breach of the terms of the tenancy.
Molly has been a tenant for thirty two years.
The length of the tenancy ("term") and conditions required for renewal are governed by the written lease. If there is no written lease, the length of the tenancy would be governed by statute, often "month to month". Usually, the lease will provide a mechanism for renewal and consequent adjustment in rent, so, for example, renewal may be automatic unless either party gives 30 days' written notice to the other of its intention NOT to renew. In a month-to-month tenancy, notice to terminate the tenancy would be determined by applicable law. Any renewal is governed by the terms of the underlying lease.
As a tenant for more than thirty years, Molly is paying so little for her apartment that the landlord could charge three times what she's paying. The landlord would like to see Molly in a moving van.
Molly is acutely aware that she and her landlord have adverse interests: she wants to stay in the apartment; he wants her to move. She says that he is required to control the noxious odors. He says that there are none, and if there are, the restaurant has the right under the terms of its tenancy to conduct its business. If Molly withholds rent, her landlord could try to evict her.
Molly's lawyer gave her the following advice:
File a complaint with the appropriate municipal agency; speak to other tenants and join together to "encourage" the landlord to take action; send a letter to the landlord, attaching statements from her doctors showing that the conditions are threatening her health; consult with the restaurant's owner about whether the condition can be abated simply and economically; decide to abate the condition herself, or with other tenants, and present the bill to her landlord.
She needs to make a hard decision: if she can't live with the conditions, she should withhold rent and bring an action against the landlord before he brings an eviction proceeding against her.
Molly decided to move to a condo in Florida. There are no restaurants within a three block radius.