Legal Question in Real Estate Law in California

Rescinding a lease after signed

After signing a 9 month lease for an apartment, the day of movement we discovered that there was a heavy smoker next door who's second hand smoke fills the apartment almost all day. I am pregnant and have a step-son that is alergic to the smoke so for health reasons we would like to get out of the lease. We received the keys but have not stayed in the apartment at all. I read that if we do not take possession of the property we may possibly get out of the lease. We have not moved anything in or stayed there. The landlord said by taking the keys it is taking possession. Do I have any rights to cancel this contract? Do I have any obligation to pay rent?

Thank you.


Asked on 8/20/02, 5:24 pm

1 Answer from Attorneys
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Re: Rescinding a lease after signed

Your obligation arises upon signing the lease; taking possession is not your main issue and, as far as I know, would only be an issue if the landlord failed to make possession available.

I do not know of any law or court decision that makes secondhand smoke from a neighboring apartment a reason to rescind an otherwise valid lease. It's possible you might win in small claims, but I think your better opportunity is to negotiate the best possible buy-out deal that you can with the landlord.

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Answered on 8/20/02, 5:49 pm


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