Full question:
I am exposed to almost constant incense burning from the people who live on top of my unit. Unlike the incense burning I endured a few years ago, this smell makes me nauseated and my face swells up. Yet everyone I have called in management and housing tells me that it is within their rights. I can't even stand going to the kitchen and bathroom where the smell is worse. What can I do? I am 65 years old and a single woman. My life is horrific now with this constant smell. I am seriously worried as I have different reactions each time. I have even called police.
- Category: Landlord Tenant
- Subcategory: Lease Termination
- Date:
- State: Virginia
Answer:
There are various strategies for dealing with offending neighbors. Some of these include:
-Discussing the problem with or writing a letter to the offending neighbor
-Calling the police
-Asking the landlord or neighborhood body to remedy the situation
-Filing a lawsuit for breach of warranty of habitability, peaceful enjoyment, infliction of emotional distress, nuisance, harassment, etc.
-Talk to a councilperson about passing a local ordinance
A landlord and is required to remedy situations which may the premises unlivable. Implied in a tenant's rights is the right of peaceful enjoyment of the premises. However, another tenant is not required to accommodate a sensitivity peculiar to one person. Under the Americans With Disabilities Act (ADA), it has been found that an individual with an environmental illness, who requests a public entity to adopt a policy prohibiting the use of perfume or other scented products by its employees who come into contact with the public is not a "reasonable" modification of the public entity's personnel policy. The ADA does not cover strictly residential private apartments and homes.
Sometimes respiratory or neurological functioning is so severely affected that an individual will satisfy the requirements to be considered disabled under the ADA. In other cases, individuals may be sensitive to environmental elements or to smoke but their sensitivity will not rise to the level needed to constitute a disability. For example, their major life activity of breathing may be somewhat, but not substantially, impaired. In such circumstances, the individuals are not disabled and are not entitled to the protections of the statute despite their sensitivity to environmental agents. The determination as to whether allergies to cigarette smoke, or allergies or sensitivities to chemicals are disabilities covered by the ADA is made using the same case-by-case analysis that is applied to all other physical or mental impairments.
In Virginia, in order for a tenant to terminate the lease early, if there is no provision for early termination in the lease, the tenant may be liable for the full term of the lease unless the tenant receives military orders or the landlord is in breach of the lease by failing to provide habitable living conditions. If the landlord has failed to provide a habitable premises, so that the health and/or safety of the tenant are affected, the tenant may provide notice that the lease will be terminated in 30 days if the condition isn't fixed within 21 days.
If the lease doesn't provide for early termination, the tenant is not in the military, and the landlord isn't failing to uphold his or her duties, it may be possible to have the landlord agree to an early termination. Typically the landlord will require some incentive for such an agreement, such as some form of compensation and/or assistance in obtaining a replacement tenant.
The following are VA statutes:
§ 55-248.21. Noncompliance by landlord.
Except as provided in this chapter, if there is a material
noncompliance by the landlord with the rental agreement or a
noncompliance with any provision of this chapter, materially affecting
health and safety, the tenant may serve a written notice on the landlord
specifying the acts and omissions constituting the breach and stating that
the rental agreement will terminate upon a date not less than 30 days
after receipt of the notice if such breach is not remedied in 21 days.
If the landlord commits a breach which is not remediable, the tenant
may serve a written notice on the landlord specifying the acts and
omissions constituting the breach, and stating that the rental agreement
will terminate upon a date not less than 30 days after receipt of the
notice.
If the landlord has been served with a prior written notice which
required the landlord to remedy a breach, and the landlord remedied such
breach, where the landlord intentionally commits a subsequent breach of a
like nature as the prior breach, the tenant may serve a written notice on
the landlord specifying the acts and omissions constituting the
subsequent breach, make reference to the prior breach of a like nature,
and state that the rental agreement will terminate upon a date not less
than 30 days after receipt of the notice.
If the breach is remediable by repairs and the landlord adequately
remedies the breach prior to the date specified in the notice, the rental
agreement will not terminate. The tenant may not terminate for a
condition caused by the deliberate or negligent act or omission of the
tenant, a member of his family or other person on the premises with his
consent whether known by the tenant or not. In addition, the tenant may
recover damages and obtain injunctive relief for noncompliance by the
landlord with the provisions of the rental agreement or of this
chapter. The tenant shall be entitled to recover reasonable attorneys' fees unless
the landlord proves by a preponderance of the evidence that the
landlord's actions were reasonable under the circumstances. If the rental
agreement is terminated due to the landlord's noncompliance, the landlord
shall return the security deposit in accordance with § 55-248.15:1.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
