Boston landlord allegedly tries to evict fast-food spot over chicken smell. Is this allowed? How tenants (and landlords) can protect themselves

Raising Cane’s alleges in a lawsuit that their landlord’s building is to blame for tenants’ complaints that “the chicken finger restaurant smells like chicken fingers."

“In reality, it appears that Defendant has come to the realization that its own build-out of the second-floor office space was poorly executed,” the filing goes on to state, as reported by CBS News (1).

So is it legal to evict a tenant restaurant for smelling like food? Here’s what the law says, and what commercial tenants and landlords need to know.

Raising Cain over chicken

In 2022, the owners of Raising Cane’s took out a lease through 2037 in a 100-year-old building on Boylston Street. When the landlord rented out office space above the restaurant, the tenants there complained of an “offensive odor,” according to CBS News. This has persisted in spite of the Raising Cane’s owner’s expensive attempts to improve ventilation for their restaurant.

The lawsuit alleges that “offensive and/or nuisance odors” isn’t a sufficient cause for lease termination, especially as reasonable attempts have been made to correct the issue.

When CBS reached out to 775 Boylston LLC, which is affiliated with Heath Properties in Boston, Heath told the news outlet that it had "no comment" on the lawsuit.

What the law says

In this case, the owners of Raising Cane’s may have the law on their side.

According to Law Commentary (2), when a landlord leases to a restaurant, cooking smell is typically treated as "foreseeable consequence,” not a nuisance, “a condition that substantially and unreasonably interferes with the use and enjoyment of property,” courts typically consider sufficient cause for eviction.

Nuisance clauses in rental contracts typically include loud noise, foul odors and waste/trash (3).

However, enforcement of these typically comes down to “unreasonable” use of the property. The firm of Adam Leitman Bailey in New York notes that previous cases have established the nuisance must be substantial, intentional and unreasonable in character in order to be considered valid under the law (4).

On the other hand, Katz Law Group in Boston notes that “a negative impact on other commercial tenants” (5) can be a sufficient cause for lease termination, but this would be open to the interpretation of a judge.

Other common and well-established reasons for eviction include:

• Failure to properly care for the property and common areas.
• Code compliance issues or violations.
• Unapproved changes to the property.
• Improper sanitation.
• Criminal activity.

What commercial tenants (and landlords) should know

If you’re considering renting from a commercial landlord as a business owner, you should know that there are generally stricter rules to follow as a commercial tenant as compared to a residential tenent, including a longer list of rental clauses and stricter laws governing your conduct. However, you are also able to include your own protective clauses in the lease agreement.

“Commercial tenants understand that eviction could destroy their business, and so they negotiate for very specific terms to be included in the lease agreement,” Katz Law Group notes (5).