Q. An Italian restaurant opened up in the ground floor of my building early this summer. Now my apartment is filled with the smell of garlic all night long. Even my clothes and hair smell like garlic.   

I've called my management company several times; they say they're looking into it but they are beyond unresponsive on most things so I am not very hopeful. 

What are my rights? Can I get out of my lease because my apartment stinks?

A. A rent abatement is more likely, say our experts.

"Odors are the most difficult issues for the courts to handle because they are subjective and transitory and because there is no established standard under New York law for measuring odors," says real estate attorney Steve Wagner of Wagner Davis PC.

But all is not lost.

Under New York State's Warranty of Habitability, all rented spaces must be free from conditions dangerous to health, life and safety.

"Remarkably," says Wagner, "the most important court case involving the Warranty of Habitability involved tenants' complaints of odors from garbage piled up in front of their complex during a sanitation strike.  The Court of Appeals held that the Warranty of Habitability did not require the landlord to be at fault and the tenants were entitled to an abatement of rent because of unsanitary conditions and odors.  There are other cases that support these types of claims for odors...so if the odors are really bad, you might be able to successfully claim that...you are entitled to an abatement of rent."

Probably your most fruitful course of action is to find a practical solution.

"The building code is pretty strict about where the exhuast can be located," notes Wagner. "It must end either ten feet above the roof or, if it exhausts through a wall near your apartment, it has to be a minimum of 20 feet away from the nearest residential window on the same wall. There are other rules concerning ducts. You might be well served by having an expert take a look at the exhaust system or call 311 to file a complaint."

Property manager Michael Wolfe of Midboro Management agrees that "if the management company is unresponsive, call 311."

He also suggests speaking directly to the owner or manager of the restaurant.

"It may be as simple as redirecting a vent or installing additional fans," says Wolfe, who also advises documenting your problem by certified mail and keeping a diary of odors--date, time and type--in case you do wind up in court over it.

Air quality specialist  Maria Vizzi of Indoor Environmental Solutions says in the situation you describe, "The first thing we check for is proper ventilation, both in the restaurant and the building. Where are the exhaust fans? Do they work? Are they strong enough? Is there a way to move any of the exhaust apparatus?"

On the other hand, she notes, "those smells are going somewhere into the air, so depending on how the wind blows, chances are someone is going to smell garlic. At least it's not the worst smell in the world."


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How to live happily above a restaurant

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