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Does a cigarette smell justify retaining a security deposit?

Does a cigarette smell justify retaining a security deposit?

On Behalf of | Jan 20, 2022 | Real estate law |

Landlords often have restrictive clauses in their leases limiting what their tenants can do at a property. Frequently, prohibitions on smoking in the unit are part of the lease. Landlords will tell current and prospective tenants that they cannot smoke cigarettes, pipes or cigars in the unit.

Unfortunately, with cold New York weather, always going outside to smoke may seem like a hardship for those quite dependent on nicotine. They may use inclement weather as a mental excuse for knowingly violating the lease and smoking inside. Others may think that they have a system that will prevent the landlord from knowing they smoke inside, such as only smoking in the bathroom with the vent fan running.

Can a landlord keep the security deposit of a tenant who smokes inside a unit during their lease?

Tobacco smoke can cause expensive property damage

Tobacco smoke is problematic for multiple reasons, with one of the biggest being how it makes an apartment look dirty. Walls, ceilings and even light fixtures may look dingy and dirty. Deep cleaning, repainting or replacing parts of the unit will likely be necessary to make it look clean again after a smoker has lived there.

Perhaps more concerning is the lingering smell of tobacco smoke. Especially in a unit with carpeting, the smell may be so pervasive that a landlord must make drastic interior changes to remove it. The costs of remediating smoke damage could be far more than the security deposit a tenant paid before moving into a unit.

There are specific rules for security deposit claims related to damage

New York landlords who intend to hold their tenants responsible for smoke damage to their properties will need to carefully comply with state law. Their obligations will include providing written notice to the tenant after they have left the property regarding the damage to the unit and the estimated costs to repair the smoke damage.

The landlord must give the tenant an opportunity to respond to their notice and substantiate their claims by providing evidence of damage or invoices from remediation professionals. Particularly in cases where the lease has a clear rule against smoking, a tenant may have a hard time fighting back against security deposit claims related to smoke damage remediation.

Learning more about lease violations and how they might affect the security deposit for a unit can help both tenants and landlords dealing with a smoke damage dispute.

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