CA Condo Lease/Smoking Problem

[pscondo1]

We have a lease with a tenant who has two+ more months left. He's complaining of downstairs tenant smoking outside on the patio area. Says smoke comes up like chimney and claims his doctor is outraged. Says he can't sleep nights because smoker downstairs smokes 24/7. We purchased a large hepa filter for the unit, we authorized him to use duct tape on the sliding glass doors to keep out the smoke. He also has three fans on the balcony to blow smoke away from unit. He still claims the situation is untenable. My questions are: Is he liable for the full lease period and amounts or does this "health" issue limit my ability to hold him to the lease period? Does anyone have an idea of how to help to mitigate this problem? No one has talked to the owner of the downstairs unit or tenant yet. (I figured the tenant would say he has every right to smoke outside and I'm sure he's smoking outside beacause his landlord won't let him smoke inside the unit...I have to agree.) HOA said the guy is smoking outside and there isn't anything they can do about the problem, is this true? Any help or advice will be appreciated...

 

[djdj]

look.... the tenant is a whiner and complainer. so let him out of his lease, so he can pisssoff another landlord..

why should you suffer with him any longer.

 

[pscondo1]

Thanks for the agreeing...I just hate to lose the dollars, but my head is starting to split from the pain of dealing with this. I think it probably is my best solution though.

 

[djdj]

well you probably wont lose anything, if you write him a letter today, hand it to him, and then send one certified mail return reciept...stating you have done everything a landlord is required to do, and if he wishes to be let out of the lease and vacate at the end of this month (i assume he paid this months rent) that you will give him back his security, and that you will advertise the apartment, and must allow you to show it to prospective tenants, so you dont lose any rent money for march.

and have all of you sign it and prerably have it notorized.

Oh chances are the duct tape will peel all the paint off the wall when you remove it..

 

[pscondo1]

Thanks again, I'm hoping the tape won't stick too badly. He ran it at the bottom of sliding glass doors and the track to keep the smoke out. Unfortunately, all rooms in the condo have a slider to the balcony. As far as renting it again so quickly, it won't be easy. It's in Palm Springs and it is easiset to rent it as a seasonal rental. He's been there since Mid-October and is scheduled to stay till mid April. The smoker downstairs rented from Jan - Mar. The season is typically only Oct-April and most people rent from Jan-March. Oh well, I'll have to chalk it up to experience and wait till next season. Hopefully my next tenant won't be so smoke sensitive...

 

[LL]

You haven't used all of your power here, and you haven't done everything a landlord might be required to do, at all.

First of all, what kind of a businessman are you that you didn't even go and talk to the downstairs tenant and try to work something out. What an attitude! Talking to the owner of the downstairs unit may help also, and you should certainly cover that base if you fail with the downstairs resident.

You don't say it in your posting, but your caption implies that both of these units are condominiums, and you are not using your considerable power here. Your condo HOA is not being honest that there is nothing that they can do, or perhaps they are ignorant, or else they just don't want to get involved. When you bought your condo, you must have received a copy of the recorded Declaration of Restrictions (or C.C.&R.'s) which are binding on the property. Did you ever read them? It almost surely contains the right of the HOA to make rules and to enforce them, and CA state law requires owners to obey them. Almost surely the HOA has made rules. Have you read them? Even without it being in the Rules and Regulations, bothering another resident with smoke is something that the HOA is probably required to act upon, on a complaint. Almost surely, the HOA has a complaint process. You have to stand up and assert yourself.

In other postings, I have advised tenants who are unhappy, because of noise or other problems, to leave, saying that the landlord can't do much. However, because these are condominiums, the landlord has much more power than if it was an ordinary apartment, and you should use that power.

 

[pscondo1]

Since I first posted this notice I've spoken to the HOA's Management Company again, the City of Palm Springs, and the owner's of the unit. All say there is nothing to be done as this is not covered in the CCR's and there is no law in force that a owner/tenant cannot smoke on their own property. The owner is a smoker too and has no intention of infringing his tenant rights and while it doesn't seem quite fair to my tenant, leagally there doesn't seem to be any recourse. Thanks for offering your suggestions. Maybe one day this issue will be addressed in a legal fashion.

 

[LL]

I don't really want to insult your intelligence, but I don't believe that you have ever bothered to read the CC&Rs, much less thought about how they got to be that way and what they mean.

The problem has been addressed in a very legal fashion.

Who do you think you are kidding when you say (ignorantly) that "there is no law in force that a owner/tenant cannot smoke on their own property". My friend, despite having bought one, you evidently have no idea what a condominium is. This owner owns at most, the interior space between the walls of the balcony. He doesn't have any air rights and the smoke is in the common area. His behavior whenever he is in view from the common area is subject to being regulated by rules of the HOA. The CC&Rs had to have been approved by the CA Dept of Real Estate before the development was allowed.

Please don't insult my intelligence by repeating whatever excuses someone has given you, when you haven't taken the slightest step to verify them.

If you choose to get rid of your own tenant, that is one approach to your problem. Another approach would be to talk with an attorney that specializes in condominium law.