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Fumes From Neighbor Are Smoking This Tenant Out


Question: A tenant directly below me is a very heavy cigar and cigarette smoker. The smoke is coming into my apartment through the open windows directly below mine and through the connecting airspace in the kitchen cabinets and plumbing. My apartment smells of smoke constantly. I am on a month-to-month agreement, yet I love my apartment and do not want to move. The on-site manager has warned the tenant several times but says he cannot do anything about my problem. Are there laws or regulations to protect me in a situation like this, which I feel is hazardous to my health?

Attorney Ted Smith replies:

The landlord's right to restrict tobacco smoking in apartments has not been settled by the California courts. Smoking in the apartment causes increased wear and tear and can be bothersome to other tenants. But doesn't a person have the constitutional right to smoke in the privacy of his or her own home? After all, it's not an airplane or restaurant.

You could request that the apartment manager ask the offending smoker to move. The manager could initiate eviction proceedings but is not legally required to. It might be better for you to ask to be relocated to another unit in the building away from the smoke.

Attorney Steven R. Kellman replies:

Smoking is a source of controversy, not only in Congress but also with neighbors. Smoking is a lawful activity (unless in airplanes, certain restaurants, government buildings, many workplaces, theaters and perhaps in bars if a proposed law takes effect). The last place of refuge is the home. But even here, the smoker is under attack.

The right to breathe clean air is making great strides against the personal right to smoke. Landlords complain about the damage smoking residue can cause to the interior of the rental, and nonsmoking neighbor tenants do not want to smell or breathe the smoke. This can easily clash with the smokers' desire to smoke without being hassled.

There does not appear to be any specific law that covers your situation--yet. General California law does provide some assistance. Smoking is legal in the apartment, but the smoker still has some responsibility to protect others from being harmed or annoyed by the smoke. It's like playing the radio. It's legal, but when the music is too loud, it can become harassing and subject to action by the manager or even the police.

If the smoke bothers you enough, the manager should take action just as if it was a noise complaint. The smoking tenant can take some preventive measures, including buying an inexpensive smoke air filter, and solve much of the problem. A solution that seeks to meet the needs and respect the rights of both neighbors should be sought.

When Are Hotel-Motel Guests Tenants?

Q: I am new to San Diego and have been staying in one of those long-term stay hotel-motel-type establishments. I have been here two months already and plan to stay two to three more months on a month-to-month basis until I decide where I want to live.

Are the laws for long-term hotel-motel stays (more than 30 days) the same as apartment rentals? When does an extended stay become subject to landlord-tenant laws?

Kellman replies:

The law that covers short-term residencies in hotel-motels varies and is different from general landlord-tenant law. In a hotel-motel, you can be locked out of your room if you do not pay the daily rate or if you violate some law or rule of the establishment.

The situation changes after a hotel-motel resident stays for more than 30 days. After that time, the resident becomes a tenant with all the rights of any other tenant and is then entitled to a habitable dwelling, and the lessor cannot simply lock the tenant out anymore. Any eviction must then be filed in the court as if it was a normal residential rental.

Some hotel-motels try to avoid this tenant rights transformation by forcing the resident to check out before 30 days and check back in as a new resident. There is a law that prohibits this activity. In fact, the hotel-motel could be liable to pay a fine of

$500 plus the tenant's attorney's fees for each violation of this law.

The Pros and Cons of Section 8

Q: I have renters in my small apartment building who has been with me on a month-to-month rental agreement for about six months. They pay on time and have not caused any problems. They now tell me that they have been approved for the Section 8 program.

Should I agree to this Section 8 program or should I serve them a 30-day notice? What are the pros and cons?

Smith replies:

The landlord's decision on whether to use Section 8 for the apartment building is debatable. Landlords should be wary of the pitfalls.

In every Section 8 lease agreement, there is a requirement to show just cause or violations of the agreement in order to evict. Not so in conventional month-to-month leases, where no reason need be given. The lease has to be renewed annually, unless you have a good reason not to.

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