Tenant Can Terminate Lease for Second-Hand Smoke

A New York court has considered whether a tenant could terminate her lease when her landlord failed to remedy, after numerous complaints, second-hand smoke coming from another tenant’s apartment into her apartment.

Danielle Cannon (“Tenant”) leased an apartment from Upper East Lease Associates, LLC (“Landlord”) commencing on May 7, 2008 and ending on May 31, 2009. The lease contained an addendum in which tenants agreed to prevent second-hand smoke from entering the common areas and other apartments.

In September 2008, a new resident occupied the apartment below the Tenant’s apartment and this lease also included the Addendum. This new resident was a smoker and also had a guest that was a smoker. This caused second smoke to enter the Tenant’s apartment, and so the Tenant complained to the Landlord about the second-hand smoke starting in October 2008.

Despite the Tenant’s complaints, the second-hand smoke continued. The Landlord took measures to try and keep the smoke out of the Tenant’s apartment such as caulking the door and vents, but this did not stop the problem.

The Tenant requested another apartment in November 2008. The Landlord offered to transfer her to another apartment, but only if she would agree to a year rental term. The parties could not agree on the terms of the transfer, and the Tenant eventually refused to pay her January and February rent because the second-hand smoke problem continued. On February 4th, she vacated her apartment.

The Landlord brought a lawsuit against the Tenant for the unpaid rent, claiming that she had breached her lease. The Tenant counterclaimed, alleging that the Landlord had breached the warranty of habitability by allowing the second hand smoke to penetrate her apartment, causing a constructive eviction. The trial court conducted a bench trial.

The New York District Court, Nassau County, ruled in favor of the Tenant and awarded her damages equaling the amount of unpaid rent. First, the court stated that the both the lease provisions and the warranty of habitability governed the rights of the parties. The warranty of habitability requires a landlord to prevent one tenant from unreasonably interfering with the rights of another tenant. The lease gave the Landlord the power to take action against the smoking tenant, since the lease prohibited tenants from causing second-hand smoke to travel outside of their apartments.

Under New York law, second-hand smoke constitutes a nuisance when the second-hand smoke is more than a single occurrence, but instead is a pervasive problem. Failure to remedy a nuisance will constitute a constructive eviction.

The court ruled that the second-hand smoke in this case constituted a nuisance and the Landlords failure to abate a known nuisance resulted in a breach of the warranty of habitability, resulting in a constructive eviction of the Tenant. The court found that the Landlord had failed to meet its obligations by not preventing the second-hand smoke intrusion after numerous complaints.

Based on the breach of its duties, the court ruled that the Landlord could not collect damages for any unpaid rent after the Tenant vacated her apartment. In addition, the court award the Tenant damages that escalated as time went on without the Landlord’s cure of the problem. The amounts awarded to the Tenant equaled the unpaid rent amounts, and so neither party owed the other anything at the conclusion of the trial.

Upper East Lease Assoc., LLC v. Cannon, No. 44409/09, 2011 WL 182091 (N.Y. Dist. Ct. Jan. 20, 2011). ). [This is a citation to a Westlaw document. Westlaw is a subscription, online legal research service. If an official reporter citation should become available for this case, the citation will be updated to reflect this information].

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St. Clare’s Bridal Showcase

St. Clare’s Bridal Showcase

On

Thursday, October 28th, 2010

6:00-10:00PM

St. Clare School Gym

151 Lindenwood Road

Staten Island, NY 10308

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Close to 10 Years in Real Estate

It’s getting close to my ten year anniversary in the real estate business. Its so hard to believe it been that long. So many accomplishments, milestones, ups and downs. While thinking of this article, I also though I would compare it to the music charts. What was popular to what is popular now. When you see the songs and the artists who created them, some are still around, some have split up.

The real estate business too has seen it’s changes. Who is still in the business, who left, and also what was once a big company is now gone and never heard of. Its interesting to see how the times have changed, and what life brings to us in opportunities.

I reflect on past sales and how families have grown faster than a speeding bullet. Some people have moved into larger more spacious homes. Some have found retirement, and moved into smaller homes, almost back to when they were single or newly married.

The amount of education I have had is also enormous. I got my Graduate of the Realtor Institute (GRI) designation, and took countless classes and seminars on various real estate subjects. Also going to the conventions and seeing what the trends are, and the times I’ve gone, I think I’ve been ahead of the curve in my technology and my creativity. I enjoy learning and reading and listing to the stories of peoples failures and learning from the mistakes they made.

You also have seen the people who are trying to make a comeback in the business. Not only do you see that in real estate, but you see it in other business ventures as well. Some are successful, and other struggle to erase their past, and get moving with the future.

Staten Island has also gone though its changes also and the end is not in sight. I really enjoy the fact that Staten Island has the Greenbelt, and that it can never be developed. It is acres of enjoyment for people to walk on the hiking trails, see plants, hear nature, and a place to get lost for hours in the serenity of nature, all by being in your backyard.

Social Networking has allowed me to connect with old classmates, some of which I never thought I would see again! It has been nice connecting with them, and learning what they’ve been up to. Its weird how we were once kids, and now we are grown up doing some great things.

My business is commissioned based. So its up to me to come up with my salary and to meet my goals year after year. Its about building relationships with people, so that they will introduce me to their family, friends, and neighbors. I know I can sleep well at night with the hard work and effort that I put forth in growing my business. I never thought I could give it up, while there were times I did, but I stuck it through. Countless fliers in the doors of Staten Island homes, all waiting for that magical phone call.

Driving through Staten Island, I can point out the many homes I was was welcomed into and saw go through new ownership. Truly amazing and rewarding. There are so many homes, and the stories are endless. I can only imagine what the next ten years will bring.

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This Old House – 30th Anniversary

This Old House is celebrating it’s 30th anniversary. It’s so hard to believe that it’s been on that long. I’ve been watching that show most of it’s time span.

This Old House is featuring a project in Roxbury, Massachusetts, in which they will be rehabbing a foreclosed property, and turn it over to two new families.

This Old House features Master Carpenter, Norm Abram, General Contractor, Tom Silva, Heating Expert Richard Trethewey, and Roger Cook does the landscaping. Kevin O’Connor is the current show host, while Bob Vila was the original host, and then Steve Thomas. The show is aired on PBS, which is channel 13 here in New York.

Every year they do about two projects. They chose a project mostly in Massachusetts, in which where they are live and work, and generally for the summer months move out into the US and abroad to a warmer place, and work on a project there. The show is only a half house, and I am dedicated in watching it weekly.

I’ve always been fascinated with home improvement work, and always learn a thing or two from the show. I apply that knowledge to what I do in my own home, as well as use that for my future home.

The This Old House website also provides valuable research information you can use for research. They also added videos to the website as well. They also have a magazine as well. All provide valuable information in owning and maintaing a home. Some renters even take advantage of the information to maintain a property they are renting.

I’ve had the opportunity and privilege of meeting all of the cast members of This Old House and have either autographs or pictures. The stories will be pages, so I’ll leave it at that. If you ever want to hear the stories, I love telling them. They are so down to earth.

You might ask how i got so interested in watching This Old House. My dad was a stockbroker growing up, and my mom was a homemaker. None of them had knowledge of home improvement, until they started watching the show. My parents said I was three when I first started watching it, and having stopped since.

My parents said I took an interest in the show, and therefore decided to let me watch the show since it wasn’t violent and was a simple how to show.

Since being so little I wasn’t allowed to use power tools. They were very strict about it, and i respected them. They told me that i could cut a finger off, and I decided not to go for it. Eventually when I was ten they allowed me to use power tools, and I started with a sabre saw. One of my parents would watch, and I would have to tell them about what I read about safety.

Norm has that infamous line…Before we do anything, lets talk about shop safety. Be sure to read, understand, and follow all safety rules that come with your power tools and ends with there is no important rule than to wear safety glasses.

Thankfully, I never seriously injured myself, and was successful in the projects I have completed.

A few times I have research the idea of getting a job with the crew, even if it meant doing the grudge work. My dream would be to hose the show. I would leave everything, and move to Massachusetts for it.

Congratulations to This Old House for making it this far. There are many more years to come.

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“Amanda’s Law”

New carbon monoxide detector law to take effect February 22
Last year, Gov. David Paterson signed a bill amending the Executive Law requiring carbon monoxide detectors in every one-to-two family property, apartments in a multiple dwelling, as well as all condominium and cooperative apartments only where the dwelling unit has appliances, devices or systems that may emit carbon monoxide or has an attached garage.

The new law is known as “Amanda’s Law.”

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How’s the market?

I was in a conversation the other day with a good friend who knows I am in the real estate business. They asked me this question:

My friend: How’s the market?

Andrew McDermott: Overall the market is doing well.

Andrew McDermott: I’m curious when you ask how’s the market, would you be interested in specifically how much homes are selling for in your neighborhood and how long they are taking to sell?

My friend: Yes.

Andrew McDermott: What I do for my friends, family and other people in the neighborhood is send a quick email that gives you an up to the moment analysis of how well the market is doing in your neighborhood.  Would you like me to send that to you?

My friend: Yes

Andrew McDermott: Cool, what’s your email address.

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Have you checked?…

When was the last time you checked your credit report? If you have not done so, you should, especially if you are looking to purchase a new home for the first time or upgrade or downgrade your current living standards.

Every year, you are entitled to a Free credit Report from each of the credit bureaus. Experian, Equifax, and TransUnion. It allows you to see all of your accounts, and allows you to address any discrepancies.

You need to pay extra to see your credit score. The report is free on your anniversary date. You want to make sure that you have a credit score of 700 or higher. Any lower, don’t worry, there is always a way to fix it or improve it.

While I am only a Real Estate Agent in Staten Island, New York, experience shows by having a higher credit score means a better interest rate, and less headaches. Especially since the banks are being strict on who they lend their money to.

My only brief suggestion is that you want to stay on top of any credit card, car loan, or mortgage payment. The day that you are late, is when trouble usually happens, and it will take a while to clear up on your credit report.

If you know you are going to be late with a payment, call the company. Let them know you are going to be late. Let them know the date and the amount. They can note it in the system, and may possibly help you avoid late fees. Don’t keep it a consistent pattern or you will be on that company’s watch list.

Budgeting, and knowing what you spend can be an extremely valuable resource as well. You can see where your money is going, and you can sometimes find unnecessary spending. My website has a mortgage calculator, in which you can estimate payments, so that you can set a budget for yourself.

Also, don’t forget the utility bills, as well as an emergency fund in case something haywire goes on in your house.

Raising your credit score doesn’t happen overnight, and you can’t pay the credit bureau’s to raise it for you. You need to be smart in what you do, and communication and doing your homework is the key.

As of right now, people don’t get credit for paying their rent on time. Credit cards, personal loans, car loans, are the big ticket items. Make sure that you pay them, and possibly a little over the minimum payment.

Andrew McDermott is an Associate Broker with Clove Lake Realty in Staten Island, New York. Clove Lake Realty is located at 1267 Clove Road, Staten Island, New York. Around the corner from us is the Clove Lake Book Store, and we are across from Clove Lakes Park.

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Mortgage Calculator

Mortgage Calculator

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Energy Saver Guide for Homeowners

Click here for an Energy Saver guide for homeowners

Andrew McDermott, GRI, Your Personal Real Estate Consultant for Life at Clove Lake Realty. Clove Lake Realty is located at 1267 Clove Road, Staten Island, New York, and is around the corner from the Clove Lake Bookstore.

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SAVE NOW with the Homebuyer Tax Credit

Here is a brochure on the Tax credit that was extended by Congress. This will provide you with the answers about the tax credit and who qualifies.

Extend Tax Credit

Andrew McDermott, GRI, Your Personal Real Estate Consultant for Life at Clove Lake Realty. Clove Lake Realty is located at 1267 Clove Road, Staten Island, New York, and is around the corner from the Clove Lake Bookstore.

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