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Hi, I could sure use some help to get out of my lease and into perhaps a home rental without damaging my rental history or credit and preserve my sanity.....
I was a home owner for 23 years and decided to downsize my life and move from Florida to Utah. I thought apartment living would make sense - you know-- less expense than a mortgage, pay off debt, figure out where we want to live, etc....
Well, I was not prepared for the changes in my life NOR for the inconvenience of living in a state with some pretty absurd anti-smoking laws. Utah has an addendum to their Indoor Clean Air Act that are making me MISERABLE.
You see, it's absolutely no problem for me to smoke outside. I enjoy being out there on the balcony most of the time (except when it is bitter COLD or bitter HOT!)...
...BUT, the Utah Second Hand Smoke Addendum lables second hand smoke as a NUICENSE, and should other apartment-dwellers complain, they have the right to demand that you not smoke anywhere closer than 25 ft to the building.
There's some weird wording in it --- something about "one incidence per day for two consecutive seven day periods" for it to be a legitimate complaint.
The long and the short of it is, we have one neighbor out of 24 apartments (3 story, 4 'banks' of apartments on the front side) who has taken it upon herself to be the "Smoke Patrol".
Yeah, smoke ain't that pleasant - I know that -, but for Pete's Sake, Salt Lake City is a heavily polluted city! And her window is easily 30-40 feet away! How much second-hand smoke could possibly reach her window after being stirred and dissipated by the wind????
Anyway, the point is, the apartment management delivered us a "cease and desist or get out in 3 days" notice.
Can they even do that?
So, we paid our rent and "ceased and desisted", but feel like this means they've effectively asked us to leave.
If I don't Cease and Desist, but continue to smoke on my balcony, what can they do?
If I put in a 30 day notice of vacating, yet have ceased and desisted, what can they do?
I'd like to escape the contract (up in mid Feb 09) and move to a house where I don't disturb anyone.
Please offer some sound financial advice, someone? Something that doesn't cost me in cash or credit standing? We really are nice people and pleasant, quiet neighbors and never dreamed outside smoking could become an issue....
In most states, LL needs a legal eviction notice to kick you out. It's posted by law enforcement. And then you have time to protest it. So it looks like LL is trying to get you to leave without court action. In that case, it shouldn't affect your credit. Credit becomes an issue when a judgement is granted. And if you give notice of vacating, LL may be able to get a judgement for the rest of the lease. You may just want to take LL up on the offer - and leave.
To be safe, do call your local tenant council to confirm that you've been given a legal out when LL gave you that notice. Good luck.
Ask the LL to let you out and give 30 day notice. See how it flies. After seeing what the tenant council advises, do that first. I don't know UT law, so there may be different repurcussions. I would consult a lawyer if tenant council does not have an answer. Talking to the LL first may get you what you want.
For anyone who's interested... I found this (highlights are mine, of course) and there is a reference on how to break a lease, too, that I think this apartment managers' illegal harassment of us justifies our early termination of contract:
What are the different types of eviction notices? Eviction Notices You Can Use
This is a list of the eviction notices available. If a tenant challenges a notice the landlord will have to prove in court that what the notice says is true. THREE DAY PAY OR VACATE NOTICE
A three day pay or vacate notice tells tenants to either pay the money they owe or move out within three days after being served this notice. This 3-day notice is used if tenants are behind on rent or they owe any other money under a lease or other rental agreement. Examples:
·late fees,
·deposits,
·repairs which the tenant is responsible for under rental agreement,
·utilities which the tenant is responsible for under rental agreement,
·etc. THREE DAY NOTICE TO COMPLY WITH THE LEASE OR VACATE
A three day notice to comply or vacate tells tenants they have 3-days to either comply with the lease, or move out. This notice is used if tenants have violated some term of a lease or rental agreement. NOTE: The three day comply or vacate notice cannot be used for failure to pay money owed under the lease or other rental agreement. The landlord must use the three day pay or vacate notice instead. THREE DAY NUISANCE NOTICE
A three day nuisance notice simply orders a tenant to move in three days. A nuisance is something which interferes with someone else's comfortable enjoyment of their life or property. Anything which injures health, is indecent, offensive to the senses, or interferes with someone's free use of property can be a nuisance. There are two types of nuisance, criminal nuisance and non-criminal nuisance. The criminal nuisance must fall within the categories below. The non-criminal nuisance will sometimes result from criminal activity which does not fall within the criminal criteria immediately below. CRIMINAL NUISANCE INCLUDES ONLY THE FOLLOWING:
·Committing a felony
·Committing a criminal act affecting the health or safety of a tenant, the landlord, the landlord's agent, or other person on the landlord's property.
·Committing a criminal act causing damage or loss to any tenant's property or the landlord's property.
·Committing a drug or gang related criminal act.
·Threatening violence against any tenant or other person on the premises, or against the landlord or the landlord's agent.
·Committing any other criminal act that directly impacts the peaceful enjoyment of the premises by any tenant or neighbor. NON-CRIMINAL NUISANCE INCLUDES THINGS SUCH AS:
·Disturbing other tenants or neighbors.
·Having parties so frequently as to interfere with any neighbor's quiet enjoyment.
·Having so many visitors so frequently as to interfere with any neighbor's quiet enjoyment.
·Smoking and the tenant's tobacco smoke drifts into another rental unit, but only if the landlord prohibits smoking in all units.
·Buying, selling, manufacturing, storing, or dispensing illegal drugs or ingredients for illegal drugs. If these acts meet the definition for Criminal Nuisance above, then a Criminal Nuisance Eviction Notice should be used.
·Gambling which interferes with any neighbor's quiet enjoyment. If these acts meet the definition for Criminal Nuisance above, then a Criminal Nuisance Eviction Notice should be used.
·Regularly committing prostitution or promoting prostitution. If these acts meet the definition for Criminal Nuisance above, then a Criminal Nuisance Eviction Notice should be used.
·Weapons violations contrary to Utah Code § 76-10-101 et seq. If these acts meet the definition for Criminal Nuisance above, then a Criminal Nuisance Eviction Notice should be used.
·Committing criminal acts along with another person. These acts are determined by statute, but may include such things as assault, homicide, kidnapping, felony sexual offenses, sexual exploitation of a minor, destruction of property, burglary, criminal trespass, robbery, aggravated robbery, theft, fraud, extortion, bribery, explosives offenses, weapons offenses, pornography, communications fraud. If these acts meet the definition for Criminal Nuisance above, then a Criminal Nuisance Eviction Notice should be used.
Last edited by nottanative; 09-06-2008 at 12:33 PM..
Smokers are not in a protected class, so the Civil Rights act of 1964 doesn't help you. However, non-smokers are. Your landlord can make his house a smoke-free area. He can restrict the behaviors of the tenants, but can't target you as a smoker specifically. You're right, in Utah, second-hand smoke is considered a nusance in apartments and condominiums. You're landlord can accept a 30-day notice with an amendment to your contract allowing you out. Get it in writing! As for buying, some states are trying to make any homeowner with less than 2-acres liable to the same anti-smoking rules for your neighbor's convenant of quiet enjoyment.
Are you agreeing that the apartment lease management does not have the right to use a "3 Day Nuisance Eviction" on us (bc of what the published information from the Utah state website above cites) and that we should press for them to agree to a signed amendment to our lease allowing us 30 days to move and quit the lease?
This is a large complex and at least 3 other tenants in our building have been similarly "served".
I am fearful that they will damage us deliberately, despite the law, as some of these natives here are pretty militant about supporting one another.
The way I understand it, a 3-day nuisance (bad conduct) "notice" gives you 3 days to fix a problem. Otherwise, you're landlord may pursue eviction through the courts (this usually takes awhile). Only a lawyer can give you details. Try this site... UNDERSTANDING THE EVICTION PROCESS
This is a "non-criminal" nusiance eviction. It is authorized if your smoking can be detected by another renter, but only if the landlord has banned smoking in all apartments. Another site, specifically for Utah, is Utah State Courts - Self-Help Resources
Just a note: I quit smoking after 35 years. Took 5 attempts on the "patch". I still miss them. If you want to try quitting, I'll support your effort. If not, I'll support your right to choose. "It's easy to quit smoking. I've done it hundreds of times" (Mark Twain).
...BUT, the Utah Second Hand Smoke Addendum lables second hand smoke as a NUICENSE, and should other apartment-dwellers complain, they have the right to demand that you not smoke anywhere closer than 25 ft to the building.
Get a 25' tape measure. Measure out 25', plop down a chair, and smoke in plain view of the offending neighbor's window, door, patio, etc. You are within the public space, not violating the law, and obeying the "cease and desist" order.
Once enough complaints come in from your obnoxious neighbor, your landlord will probably be happy to let you out of your lease.
>Get a 25' tape measure. Measure out 25', plop down a chair, and smoke in plain view of the offending neighbor's window, door, patio, etc. You are within the public space, not violating the law, and obeying the "cease and desist" order.<
LOL
Turnabout is fair play... Make darn sure granny the smoke patrol is not doing ANYTHING and I mean ANYTHING that could be a nuisance. Dont alot of those types have snake snack type purse dogs?... It better not EVER bark...
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woo-hoo! found something!
