Q: I live in a 24-unit apartment building on the top floor. The building allows smoking. The couple that moved in below me smoke not only cigarettes, but marijuana, as well. The smell comes up through my floors, and I can smell it in every room and every closet. They don't leave their apartment often so this is almost a 24/7 issue. Both of them smoke outside on their deck constantly. The smoke comes right into my apartment when my deck door is open. It doesn't seem fair that I have to tolerate this. I have complained to the apartment manager but gotten nowhere.
A: Landlords have a duty to make their rentals fit for the use intended, in reasonable repair and compliant with safety and health codes. In your building, since smoking is allowed and tenants who smoke seek out those apartments, it is not a lease violation for your neighbors to smoke cigarettes in their own apartment or on their deck. However, it is most likely a lease violation for them to smoke marijuana, since that is currently an illegal substance in Minnesota.
Under the Minnesota Clean Indoor Air Act (MCIAA), even when smoking is allowed in rental apartments, it's still illegal to smoke in the indoor common areas of apartment buildings, such as laundry rooms, hallways, entrances, party rooms, exercise rooms, indoor pool areas and public restrooms. However, smoking is allowed under the MCIAA in individual apartments if management allows for smoking. The law doesn't regulate smoking in outdoor spaces, such as decks or patios, so that would also be allowed since the building permits smoking.
It is understandable that too much secondhand smoke could become a nuisance for nearby neighbors, even in buildings where smoking is allowed, and you have the right to breathe clean air. The apartment manager is caught between two tenants, and since smoking is allowed in the building, the manager may not be sure how to handle this situation. You didn't mention if the manager spoke to the couple downstairs about their smoking. I'm guessing you aren't the only nearby neighbor who doesn't appreciate their nonstop smoking. Because of the pandemic, people are working and staying in their homes more hours, which leads to more time for residents to smoke and for others to experience secondhand smoke. Still, it's difficult for a manager or landlord to enforce a quantity, as in too much smoke, when the building allows smoking. Your neighbors also have a right to quiet enjoyment of their apartment, so it makes it difficult for a manager to side with one tenant over another.
You do have some options though, since it is negatively affecting your living space. In addition, use and possession of marijuana is a lease violation in Minnesota, and you may be able to complain to your landlord that you do not want to put up with the heavy marijuana odor. You should contact your manager once again and let them know that the smoking and marijuana odor is making it difficult for you to live there and request that you be moved to another apartment in the building farther away from the couple downstairs. Filing a rent escrow action may not be a successful option in this case, since a judge would most likely rule against you, due to smoking being allowed in the building.
Another option is to call the police when the couple downstairs are smoking marijuana; a warning might be issued. You also can request to terminate your lease early. If your manager agrees to terminate your lease early, make sure to get it in writing and signed by both parties.
Kelly Klein is a Minneapolis attorney. Participation in this column does not create an attorney/client relationship with Klein. Do not rely on advice in this column for legal opinions. Consult an attorney regarding your particular issues. E-mail renting questions to kklein@kleinpa.com, or write to Kelly Klein c/o Star Tribune, 650 3rd Av. S., Minneapolis, MN 55488. Information provided by readers is not confidential.
