Ask Margaret

Q:What are non-smokers rights? I have just moved into a rental building, two year lease unfortunately. I have COPD from second hand smoke; never had a cigarette in my mouth.

I, and my daughter, smelled smoke in the apartment the day I moved in.

I would like to break my lease, but I fear that is impossible as the landlord has a gazillion rental buildings and a friend who had an experience has reported she was able to move, lost money, but had to move into another of their buildings. After being in the apartment for less than a month, I am not keen on that idea, for many reasons.

Do non-smokers have rights? Am I tied to the landlord for the remaining two years even in another building?

- Suffering Non-Smoker

Dear Non-Smoker,

Your letter is a reminder that even in the midst of a major crackdown on smoking in this city, second-hand smoke (or third-hand, which is what you're actually dealing with) can still pose a nasty problem for those who choose not to inhale voluntarily.

It's also a reminder that unlike our suburban counterparts, little kings of their own house-castles, we New Yorkers have little real control over our sanctuaries. Home is a haven carved out of whatever we can tolerate from our neighbors. For some, the final straw is the rhythmic, rumbling back-and-forth barks of the two dogs who live one floor below; for others, it's the mystery tenant who forgets to lock the front door and causes the nervous woman in 3B to leave accusatory Post-It notes for whomever she suspects; for still others, it's the nervous woman in 3B who leaves accusatory Post-It notes even when she's been assured that the culprit is, in fact, the mailman.

In your case, however, you have perhaps a more-legitimate-than-most complaint. Your problem is not one of mere annoyance or inconvenience, like gag-inducing cooking smells or a lazy former frat boy who always leaves his laundry in the single, beaten-up quarter-operated dryer in the shared basement.

Third-hand smoke - the chemical residue smoke leaves behind - sounds like a distant and innocuous concern, but it can actually become toxic, especially for young people or those with chronic lung conditions like yours. Living in an apartment building is always an exercise in weighing how much crap you can put up with against the benefits of staying put.

In your case, it seems like the load of crap has become too heavy to bear. Your home is potentially making you sick, which should probably be a dealbreaker. But you already know that.

(Speaking of what you already knew ? didn't you notice the noxious smell before you moved into your apartment? I would pray to the gods of real estate that you did a walk-through before signing a 2-year lease.)

You say that you've heard that your landlord has let others move into different apartments under similar circumstances. If your landlord has even a fraction of the gazillion apartments you imagine under his purview, surely one of them is tobacco-toxin-free? You don't tell us your reasons for not wanting to move into another of the landlord's properties, but regardless, moving at all should be your last resort. What you really want is to get your landlord to fix this and for you to stay and not be forced to troll the streets searching for Man-with-a-Van telephone pole flyers.

The thing to remember about landlords is that no one is ever nice to them. They are generally a despised bunch, always the villains in our cocktail party stories about the Worst Apartment Ever. After years of being screeched at and demanded upon and laughed about, they tend to harden. So be soft. Be nice. Ask your landlord for help as if you expect that he'll actually help you.

If your landlord is willing to work with you to get rid of the smokiness, or, if that fails, to move you to another apartment at one of his properties, go with it. If your entreaties for help (in writing) get no results, then you may consider breaking your lease. Before you do, however, consult an attorney. (See sidebar.)

You need to address your unhealthy living space, but you also need to take care of your mental health, which means playing nice with your landlord for as long as possible in order to get what you want.

- Margaret

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