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We have headaches and breathing problems because of smoke from my neighbor's fire pit. What can we do?

Having a fire pit on your balcony is against New York City's fire code. 

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Question:

My neighbors spend a lot of time on their balcony and their fire pit creates noxious smoke that blows directly into my apartment. As a result, my children and I suffer from terrible headaches and my disabled son is having breathing issues. Our building has a non-smoking policy, but it is not enforced. What can I do?

Answer:

The law is on your side: it is illegal in New York City to keep a fire pit on a balcony, our experts say.

More New Yorkers may find themselves in your situation as people seek out ways to socialize comfortably outdoors. But not only are fire pits illegal on balconies, they're also illegal even for tenants and owners with backyards. Under the city's fire code, fire pits are considered to be open fires, which are prohibited in the five boroughs. 

"Occasionally, someone is able to get a fire pit or a grill on a large, set-back terrace or roof terrace, but in those instances, permits and permissions are needed," says Deanna Kory, a broker with Corcoran

And not only is this a violation of the city fire code, but your neighbor's fire pit is also negatively affecting your air quality. This is considered a breach of the Warranty of Habitability, which protects tenants' rights to a safe and livable home. 

Your first step should be reaching out to your landlord or the building's owner. 

"Tell the landlord or board and the managing agent for the building about the situation," says Jeffrey Reich, a partner in the law firm of Schwartz Sladkus Reich Greenberg Atlas. "Raise the question of whether the use of the fire pit is a violation of the city’s laws and notify the landlord or board of the odor nuisance."

You can also file a complaint about the fire pit to the FDNY, or report the issue to 311. 

"The fire department could give the owner or the neighbor a violation, and that might solve the problem instantly," says Sam Himmelstein, a lawyer who represents residential and commercial tenants and tenant associations (and FYI, a Brick sponsor).

If that doesn't do the trick, and you're a renter, you could withhold your rent on the grounds that your neighbor's fire pit is making your apartment uninhabitable. 

"Landlords are responsible for breaches of the warranty of habitability caused by tenants if they affect other people, so you could potentially withhold your rent," Himmelstein says. 

One last option is to start an HP proceeding in housing court, which forces landlords to repair any conditions or violations that negatively impact tenants. Because of the legal pressure it puts on landlords, this may be the quickest way to solve the problem, Himmelstein says. 


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