questions & answers

Question: My apartment is frequently filled very strong smells cigarette smoke, The fumes are coming through the wall and clothes and linens smell from it. It is also causing headaches and sore throat. Can i legally break my lease without penalty as presents a health hazard.

Answer: Under the Arizona Residential Landlord and Tenant Act (A.R.S. Title 33 Chapter 10), landlords are required to “make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition” (A.R.S. 33-1324). They are also responsible for ensuring that their tenants conduct themselves “in a manner that will not disturb [their] neighbors’ peaceful enjoyment of the premises” (A.R.S. 33-1341). It certainly could argued that the sort of cigarette smoke that you have described is (1) making the premises unfit for habitation and (2) disturbing your peaceful enjoyment of the premises. As a general rule, before a tenant in this sort of situation may attempt to break the lease, that tenant should first provide the landlord with formal written notice through a signed and dated letter – delivered either by hand or by certified mail – describing the problem in detail and requesting that the landlord fix it as soon as possible. Only if the landlord fails to fix the problem within a reasonable period of time – whether because the landlord makes no effort or because the problem cannot be fixed – should the tenant then deliver a second letter to the landlord declaring the tenant’s intention to terminate the lease. The tenant should keep careful records of all correspondence with the landlord and also document the problem itself – in order to have evidence to present to a court should the landlord decide to attempt to enforce the lease. Under A.R.S. 33-1361, if the problem is so severe as to “materially affect the health and safety” of the tenant, then the tenant may deliver written notice to the landlord describing this breach of the rental agreement (which automatically incorporates all relevant Arizona law) and stating that if the breach has not be remedied five days after receipt of this notice, then the lease will be terminated on a specified date shortly thereafter.