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Ask Sam: Can I be evicted for smoking pot?

If your smoking is excessive, you could be putting yourself at risk of eviction. 

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Question:

I sometimes smoke marijuana in my apartment, and recently, one of my neighbors complained to me about the smell. If they report me to the landlord, could I get evicted?

Answer:

Even though it’s less heavily enforced these days, possessing marijuana is still illegal in New York state, and if your smoking is creating a nuisance, you could have problems, says Sam Himmelstein, a lawyer who represents residential and commercial tenants and tenant associations

Smoking cigarettes at home, though, is a different matter.

“When people smoke cigarettes in their apartments, there’s not much landlords can do about it, even if it permeates other apartments,” Himmelstein says. “There’s solid case law in both judicial districts of the city that have said that. It’s a matter of law that it can’t be a nuisance for someone to engage in a completely legal activity within their apartment.”

There are exceptions, though, if your lease includes a clause stating that you can’t smoke in the apartment, or if your building has declared itself smoke-free. However, if the building goes smoke free after you move in and you are rent stabilized, you are protected, because landlords are not permitted to alter the terms of the original stabilized lease.

But since smoking marijuana is technically an illegal activity, doing so in your apartment could be seen as a nuisance to your neighbors. (Hoarding, engaging in other illegal activities like assaulting or harassing neighbors, and vandalism also fall under the category of “nuisance,” and are possible grounds for eviction.)

Himmelstein cites a case his firm tried several years ago, in which a tenant who smoked marijuana regularly, to the extent that neighboring units constantly smelled  it, lost his eviction trial and appeal.

“The neighbor who made the complaint was not necessarily against smoking pot—he just didn’t want the smell permeating his apartment,” Himmelstein says.

The degree to which your smoking impacts others, then, could play a role in the likelihood that you get evicted.

Himmelstein compares the issue to noise complaints.

“In urban environments, there’s a certain amount of noise you’re expected to tolerate, like people playing instruments, or children running across the floor,” he says. “But you don’t have to put up with someone playing club music at 3 a.m.”

Similarly, it’s reasonable to expect that you might have neighbors who smoke and that you’ll smell the odor occasionally, but not that your apartment will reek of marijuana at all hours.

If you land in housing court over your smoking, a judge would likely grant you an opportunity to address the problem before giving you the boot.

“If the landlord brought this case and won, the court would probably give a judgement but say that if the tenant cures the problem by stopping smoking, then they won’t be evicted,” Himmelstein says.  

Note that this should not apply to the use of legally procured medical marijuana, which is often consumed in forms that do not leave an odor. Moreover, should marijuana be legalized in New York state, these laws may change.

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Sam Himmelstein, Esq. represents NYC tenants and tenant associations in disputes over evictions, rent increases, rental conversions, rent stabilization law, lease buyouts, and many other issues. He is a partner at Himmelstein, McConnell, Gribben, Donoghue & Joseph in Manhattan. To submit a question for this column, click here. To ask about a legal consultation, email Sam at [email protected] or call (212) 349-3000.