New landlord with questions (apartments, lease, tenant, eviction)

[Ruralgalnebraska]

My husband and I as of this year purchased a building that has three apartments upstairs and business space on the main level.
The part I am wanting to ask questions about is one apartment upstairs that we rented out this summer.
We had decided to not do a lease. To go month to month. But tenants needed a lease in order for them to have their rent paid by the state so we gave them a 6 month lease. Verbally I had told them it was a no smoking apartment as we wanted the entire building to be a clean living one. I wanted them to know this up front before they even decided to move in. Tenants stated they both smoked but loved the apartment so much that they would either quit or smoke outside. (this was not mentioned in the lease)
Well to make a long story short, they have been smoking. It is pretty easy to detect cigarette smoke if your a non smoker. I had noticed the smell one day while cleaning the entry way. I went to their door right then and there and confronted them with it. They apologized and said it would not happen again. Shortly after that they came into my place of work and apologized profusely again.
Well they are back to smoking inside the apartment and now it's more then cigarettes. It's also pot. It IS listed in the lease that they not use illegal drugs on the property.
We completely painted the entire apartment before they moved in and they have smoked so now we will have to repaint again. The damage has been done whether or not they stop smoking now.
The 6 month lease is about up. We have a new lease we plan to present to them saying they must now pay an additional amount due to them smoking and if they do not agree to it they must then move out. We plan to give them this lease 30 days before the old one runs out so they have time to move out if they so choose.
My husband wants them to pay the extra and then at the end of this next 6 month lease they must stop smoking in the apartment or get out as we will then have the other two apartments ready to lease and also want them to be non smoking etc.
We figure it would not be right to let them smoke and then not the new renters. Plus...we really don't want smoking in the building at all!!!
I"m disgusted we did not have this in the lease.
Anyone have anything for us? Also where is a good place to find information on renting. The legal formalities.
Thank you!
Jean

[sponger42]

Evict them now and save yourself the trouble. Their lifestyle doesn't match your demands. They are not going to stop smoking tobacco or pot--or go out and smoke weed in public and risk arrest.

You can't expect a rental document to define how someone lives their life. If your insurance agent came to you and said you couldn't have wine with dinner (or you'd ahve to pay a higher premium) because they're muslim and alcohol is evil, plus they're afraid you might get drunk and crash your car costing them money, you wouldn't agree to follow their rules. This is along the same lines as how your renters will see you.

They are smokers. No rental document will change that. Explain that you don't want to cause them undue trouble but that you can't allow any smoking in the building, and you understand that they don't want to quit and that you can't tell them how to live their lives. Ask them to move out at the end of their lease (or within a few months). Try to work out a friendly agreement with them. They don't sound so bad.

If they are unwilling to work with you, remind them that there was a no-drug use policy on their rental agreement. Also, remind them that their rent assistance program probably won't look kindly on their drug use.

If that doesn't get them on the way to leaving, serve them an eviction notice, call the program that pays their rent and report their drug use. Check your state renters laws and possibly consult an attorney. Google "nevada renters stat law" and look for a .nv official government website with the law spelled out.

Remember, as their landlord, you are merely a provider of a housing service. You are not allowed to be a morality judge or tell a tenant how to live their life. Protect your property within the bounds of contracts and laws and do the best you can to be a good supplier of housing. You can't do anything about the tobacco smoking because you didn't put it in writing. I VERY MUCH doubt you can write it into a new lease, and even if you can, if they take you to court you probably won't have much of a case.

Good luck. I hope you can get them to leave without too much trouble.

[Ruralgalnebraska]

Hello sponger42,
Thank you for your response. I didn't feel we were judging their morality but trying to keep their lifestyle to themselves and not bother other renters as well as keeping the walls, hallways etc from smelling of pot and cigarettes. It was discussed ahead of time afterall and was not a shock to them.
I do appreciate your comments, very much, so thank you. Hard to think this out as are new landlords but want to do the right thing in all directions.
Will be doing more research and asking around before we make any decisions.
Have already spoke to a landlord here in our own town. They do not allow smoking either and it's in their lease. If someone is caught smoking they lose their deposit and are evicted right then and there, no notice. They are within their rights.

[garth]

sponger42-

That's a really great post. Good info in it. However . . . there's always a "however" isn't there.

However, I have to disagree with one little statement based on some recent (past couple of years) case law in my old neck of the woods (Calif). You wrote that the landlord is not to be a morality judge or tell people how to live their lives. Well, that's true up to a point. Let me explain.

There was a situation in Calif where a normally protected class (gender preference issue) wanted to rent a SFH. The landlord was a devout Christian who's religious beliefs didn't jive with same gender living arrangements. The landlord refused to rent their property to the people.

To make long story short, the issue went to trial. It was basicly a case of gender preference protected class vs. Religious Convictions. The court ultimately upheld the right of the property owner to refuse to rent their property to the people. The property owner would have been aiding a lifstyle choice that was in direct conflit with their religious convictions if they were forced to rent it. Effectively, the court said that religious convictions trumped this protected class.

So, in this case they're allowed to be a morality judge and a least tell people that they can't live their lifestyle in the owner's property. Now, does such a thing carry over to other states? I don't know. However, I found it interesting.

As for verbal agreements for the OP, here's something that does carry across state lines. Verbal statements in real estate transactions are not enforceable. You have to have it in writing.

In every house I've rented to people, I've had clauses in it to forbid use of tobacco products, along with the regular prohibitions against any and all illegal activities. It's clearly written. In fact, the renters had to initial each and every paragraph on my forms, acknowldeging that they read it, before they signed on the bottom line. Such things were never questioned.

I also had a section that prohibited the rental to ex-felons and people on probation, or anyone staying on the property that met those qualifications. I happened to be in the legal field and entering into a business relationship with such people could cause me all kinds of problems. I didn't need the trouble.

Overall, I was establishing standards of how the tenants could live their lives in some ways, and limiting access based on how they lived their lives in the past. It was needed based on my circumstances.

Oh yes, and the property was covered by CC&R's. There's all kinds of lifestyle limitations in there (noise, parking, visible activities, etc.). I would provide them with a copy of the CC&R's and had a section in the lease where they acknowledged receipt of the doc agreed to follow them. Again, those were more limitations on the way they lived their lives.

So, those are just a few examples of doing more than just providing housing. They're not all encompasing, but they're certainly significant enough for discussion.

BTW, OP, good luck on your tenant situation. Next time, put everything in writing, have it reviewed by a RE attorney for legality, and have your new tenants initial and sign everything. Again, good luck.

[sponger42]

My point is simply that smoking is a major part of someone's lifestyle that no piece of paper--and especially no verbal agreement--is going to change. So, even if your tenants promise you the moon, I'm trying to give you an idea of what to expect and what actions to take.

While your tenants might go out to the sidewalk to smoke tobacco, they are taking a major risk by smoking pot in public, with worse consequences than annoying their landlord, so you can expect them to continue the drug use inside or at least on their patio (if they have one.) They might try smoking in front of a fan to an open window at first, but evenually the phone is gonna ring or the kettle is going to whistle when their joint is only 1/4 burned and *poof* more pot smoke inside the building despite their "best efforts".

What you want and how your tenants live is fundamentally different, so you need to part ways with them on as friendly terms as possible and don't rent to smokers, drug-users, etc. again, despite what they agree to.

That's why those tenants suing the landlord to live on his property is so ridiculous. They are trying to get into a bad situation of antagonism with their landlord. Ridiculous. No property or rental deal is worth that. If a Hindu landlord told me I could do anything I wanted except grill up hamburgers (or any sort of beef product) at home, I wouldn't rent the Taj Mahal from him for two dinars a month.

Then again, not everyone out there has their head screwed on straight.

Good luck with your situation.

[Ruralgalnebraska]

It just so happens that we really don't want to give this couple the boot. We actually like them and do consider them to be good renters despite the fact they said they wouldn't smoke and did.
Something I don't think you're thinking about Sponger...are others who would also have to suffer due to smoke. If someone wanted to worship Budha in their apartment and the loud chanting wasn't bothering their neighbors,(do they even chant? I don't know) more power to them. But in smoking cigs and pot both, it's a horrible odor for those who don't smoke and not easy to get out of things! There is nothing worse then having to smell stale cig or pot smoke.
We also have an office space renter right below this couples apartment that is allergic to cig smoke and we sure don't want to lose him.
We dont want to lose them either.
Interesting to hear all sides of the story. Sponger, let me guess...your a renter, you smoke pot and you smoke cigs? Just a guess. You don't have to answer that. Thanks for your side of things.
And thank you too Garth. I do have religious convictions so what you shared supported that.
God bless you both!
Jean

[KevK]

Originally Posted by Ruralgalnebraska

My husband and I as of this year purchased a building that has three apartments upstairs and business space on the main level.
The part I am wanting to ask questions about is one apartment upstairs that we rented out this summer.
We had decided to not do a lease. To go month to month. But tenants needed a lease in order for them to have their rent paid by the state so we gave them a 6 month lease. Verbally I had told them it was a no smoking apartment as we wanted the entire building to be a clean living one. I wanted them to know this up front before they even decided to move in. Tenants stated they both smoked but loved the apartment so much that they would either quit or smoke outside. (this was not mentioned in the lease)
Well to make a long story short, they have been smoking. It is pretty easy to detect cigarette smoke if your a non smoker. I had noticed the smell one day while cleaning the entry way. I went to their door right then and there and confronted them with it. They apologized and said it would not happen again. Shortly after that they came into my place of work and apologized profusely again.
Well they are back to smoking inside the apartment and now it's more then cigarettes. It's also pot. It IS listed in the lease that they not use illegal drugs on the property.
We completely painted the entire apartment before they moved in and they have smoked so now we will have to repaint again. The damage has been done whether or not they stop smoking now.
The 6 month lease is about up. We have a new lease we plan to present to them saying they must now pay an additional amount due to them smoking and if they do not agree to it they must then move out. We plan to give them this lease 30 days before the old one runs out so they have time to move out if they so choose.
My husband wants them to pay the extra and then at the end of this next 6 month lease they must stop smoking in the apartment or get out as we will then have the other two apartments ready to lease and also want them to be non smoking etc.
We figure it would not be right to let them smoke and then not the new renters. Plus...we really don't want smoking in the building at all!!!
I"m disgusted we did not have this in the lease.
Anyone have anything for us? Also where is a good place to find information on renting. The legal formalities.
Thank you!
Jean

What business is it for yours if your tenant smokes and what they smoke?? If they pay the rent, keep the place nice and don't bother others, that is all you should concern yourself with! Their personal habits are nobody else's business!

[Ultrarunner]

Last I checked... refusing to rent to smokers is not illegal... although there is a move to make it against the law.

Some Bay Area communities are considering making smoking illegal anywhere outside of your home/apartment... such as on a balcony or patio in a multi-dwelling building.

In addition, the smoke from years of smoking can permeate to the point where services of a smoke restoration firm is required. The worst case I've had the pleasure to correct involved an chain smoking elderly lady that was as nice as could be... She smoked so much, I can't even picture her without a cigarette.

Anyway, when she moved, the entire unit had to be stripped... all window coverings, and even the shelf paper liners in the cabinets reeked of cigarettes. The walls were yellow from nicotine, the windows were "Tinted" from nicotine. What would have been a simple clean, paint and show, turned into a week long project.

Every inch of the unit had to be washed with heavy detergent. The walls required two coats of Zinsser Smoke Stain Killer Primer before the top coat... Three coats of paint to do the job of one.

I could go on and cite statistics stating the number of house fires caused be cigarettes... but..

The REAL ISSUE is the owner made the unit smoke free and the Tenant Agreed in writing.

[Ultrarunner]

Originally Posted by KevK

Their personal habits are nobody else's business!

Not True when personal habits are illegal and occurring on the Owner's Property.

The Courts have held owners liable to the point a loosing their property for failure to act regarding illegal drug activity.

I wish it wasn't so because it makes the owner a "De facto" enforcement arm concerning criminal activity.

A prosecutor need only prove the Landlord had knowledge and failed to act appropriately.

[sponger42]

To correct your assumptions:
Renter: Yes.
Smoker: No.
Drugs: No.

I don't think there's any other advice I can give. You say there's nothing worse than stale cig or pot smoke, but that's just your opinion. Apparently your smoking renters disagree.

To some people, there's nothing worse than hearing a Buddhist Shaolin chant at 7AM, or smelling my cooking at dinnertime, or listening to their upstairs neighbors doing the horizontal mambo at 3 in the morning, or knowing that the four girls next door are all each other's wives, or whatever. None of these habits/lifestyles are things that a mere landlord is going to change in their tenants. Don't try, it's a waste of effort. If getting the rent on time is worth dealing with the smoke to you, keep them. If not, lose them as nicely as possible.