Tenant seeks help against second hand smoke (Commerce: apartment, rental)

[SanDiegoRenter]

Hi! My boyfriend and I are renting a privately owned condo through a property management company. We are in serious need of help/advice on our options. We are both non-smokers and I am extremely sensitive to cigarette smoke. It is causing me all sorts of health issues (coughing, constant congestion, hard to breathe, etc.) Our neighboring unit is a heavy smoker and her smoke comes into our unit ALL day and ALL night. People come in and think we have been smoking! We have purchased an air purifier and it cut it down a little but not much. We have also sealed off all vents for the ac/heater and that still does not prevent it! We are going crazy with the smoke and the landlord basically said we had to deal with it or pay to break the lease. After reviewing our lease, we noticed we have a No Smoking Clause. It states "Smoking is absolutely prohibited at or about the Property, including but not limited to cigarettes, cigars, pipes, and other tobacco products. Tenant agrees to enforce the no-smoking policy with all persons under Tenant’s control, including but not limited to, all occupants, guests and invitees.” Will this help us at all with the battle with our landlord? It seems they are implying a smoke free environment and failing to provide one in this case. What are our options? It is hard to find any information or contacts. Thanks!

[earlyretirement]

Unless the ENTIRE building is totally non-smoking (rare) then I doubt there is much you can do. You can't control what your neighbor does about smoking. Your non-smoking clause pertains to your unit you are renting. Not your neighbor's unit.

It wouldn't be fun breaking your lease and paying that penalty but honestly if it really bothers you that much and you deem it to be a serious health risk, I'd recommend breaking the lease and leaving. No amount of money would be worth it to me to risk my health or my family's health.

I'm not sure how big the property management company that you used is, but I'd recommend negotiating with them on the fee you need to pay to break the lease. You can politely let them know that if they can't reasonably work this out then you will be forced to post online negative reviews about your experience as well as contact the local Better Business Bureau as well as Chamber of Commerce.

Legally, there wouldn't be anything you can do to force them to break the lease for no penalty, but most intelligent owners of companies don't want the bad online press as that lasts forever so if you do it in a polite enough way, they most likely will meet you half way (or possibly more) on the penalty fees to break your lease.

Just don't be rude about it as there is little control they have over your neighbor next door, unless they also manage that property which is doubtful. I call it "killing them with kindness complaining". You can be firm but be respectful, logical and firm with your complaints. For the Better Business Bureau, you can file a claim online. But what I'd suggest before you actually file it is take 20 minutes to write up a letter and then send the property management company a copy of the text/letter you will send so they understand if it's not resolved you will send it.

The thing the property management company needs to realize is that with the power of Google, a negative review posted on the proper websites, will last forever. So if you are listing their company name and also list the address warning people not to rent with them, it will do much more harm than the penalty fee to break your lease, which your property management company will quickly realize or you can help them realize. If it's a small no name property management company they might not care. But if it's a respected firm that has been around a while, they will understand that.

Good luck.

[oddstray]

Have you talked to the HOA board of the condo association? They may have more pull at getting the neighbor to control their smoke than the owner of your particular unit would have.

[Oerdin]

You can't do much other then move.

[shmoov_groovzsd]

What kind of building are you in? For your sake I think moving is the most obvious choice if your health is being affected negatively.
Your landlord sounds like a real jerk. Documenting the smoke somehow with video or photos illustrating that the unit you are renting is incapable of providing a smoke free environment should be grounds for terminating the lease.
Simply because he is requiring you to abide by a rule which you are upholding, but HE is unable to provide a smoke free environment due to stuff out of your control. In other words, if he is telling you that you need abide by smoke free rules, then he should be giving you an apartment that does not allow smoke to come in.

If this were to go to small claims court AND you had pre-existing health conditions, more than likely the courts would take your side (they take the little guys side most of the time). The landlord, if he/she has been in the business long enough would be wise to that and work out some arrangement.

[deuterdu]

Originally Posted by SanDiegoRenter

Hi! My boyfriend and I are renting a privately owned condo through a property management company. We are in serious need of help/advice on our options. We are both non-smokers and I am extremely sensitive to cigarette smoke. It is causing me all sorts of health issues (coughing, constant congestion, hard to breathe, etc.) Our neighboring unit is a heavy smoker and her smoke comes into our unit ALL day and ALL night. People come in and think we have been smoking! We have purchased an air purifier and it cut it down a little but not much. We have also sealed off all vents for the ac/heater and that still does not prevent it! We are going crazy with the smoke and the landlord basically said we had to deal with it or pay to break the lease. After reviewing our lease, we noticed we have a No Smoking Clause. It states "Smoking is absolutely prohibited at or about the Property, including but not limited to cigarettes, cigars, pipes, and other tobacco products. Tenant agrees to enforce the no-smoking policy with all persons under Tenant’s control, including but not limited to, all occupants, guests and invitees.” Will this help us at all with the battle with our landlord? It seems they are implying a smoke free environment and failing to provide one in this case. What are our options? It is hard to find any information or contacts. Thanks!

If that smoking tenants lease has the same rules as yours then absolutely. Since the landlord is not responding to your needs you can either:

Best idea if the landlord refuses to do anything about it. - 1) Get an attorney and state your case and see if you can break your lease agreement. Somewhere in the agreement there should be wording about the lessors responsibility and may even have a "dispute resolution" clause.

2) Collect receipts, medical bills related to the second hand smoke etc. Collect any proof (video etc) that this is happening and file a small claims court lawsuit requesting past rent be refunded due to lessor negligence and for not meeting contractual obligations. You won't get a bunch of money but you always go into a courtroom asking for the world, the moon and Mars too while you are at it.

3) Site the Fair Housing Act: s
Print Advocate

US Code Chapter 45 - Fair Housing - Subchapter I, Section 3617
Home > Legal Research > FHA

§ 3617. Interference, coercion, or intimidation. It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by section 3603, 3604, 3605, or 3606 of this title.

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This is definitely stretching it but you might be able to make a case using these CA laws:

Where this occurs, and the tenant can show that the landlord's failure to maintain was a substantial breach of the implied warranty affecting his health and safety, the court or jury will determine the degree to which this breach devalued the rental value of the property to the tenant, usually expressed as a percentage, i.e., -15%, -25%, etc. This factor will then be applied to the lease's rental rate and the rental rate reduced by that amount. The tenant will have the opportunity to pay the past due rent less the percentage earlier found within five (5) days of entry of Judgment. If the tenant does so, the tenant wins. If the tenant fails to pay, the tenant is evicted {Code of Civil Procedure Sec. 1174.2}

Here is the link to the whole thing. Landlord Law Overview California | Landlord.com Nothing in there about smoking but the landlord has the responsibility to act when it affects your health and safety.

[tickyul]

How long is your lease??? It may be best to just stick it out if you can.

I am in a similar situation, nonsmoker in a building filled with stinky smokers.

You may want to get another air cleaner, one that puts out ions and has a prefilter is best, make sure you keep it cleaned often, it really helps. Also what I find helps is buying a scented product that at least masks the filthy stink of cigarette smoke. Plants will also help to make the air cleaner and smell better.

It may sound crummy, but another thing I do that helps a ton is buy those cheap paper dust masks and wear them when the odor is strong.

[Oerdin]

On a related note the state legislature is currently trying to pass a bill making it legal for a landlord to make it illegal for a tenet to smoke on his property. I really don't think we need such a law but I suppose if it is written into the lease and both parties agree to it in advance...

[AADAD]

You can void your lease based upon health circumstances and get a detailed note from your MD. submit to the board and walk. nothing is worth risking your health.

[Jessicarf]

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