Cigarette smoke entering home through heater vents

[w8n4ufo]

We live in California. We rented a house that had an attached garage apartment which was rented by another tenant. Two weeks after we moved in a new tenant moved into the garage apt. who smoked. There was a common enclosed breezeway between our dwelling and theirs. The new tenant would keep their apt. door open to the breezeway and whenever we would run the heater (this was during Jan.) cigarette smoke would enter our home through the heater vents. It was so strong that our house smelled like a bar at times and my eyes would get very irritated. We brought this to the attention of the landlords (who are smokers themselves) and all they did was to ask her to keep her door shut and maybe open the windows in her apt. when she smoked. They said they did not want to ask her to smoke in her own home. She failed to do this and we let them know repeatedly that the problem persisted. We have 3 children and had to basically choose between heating our home in the middle of winter and filling the house with second hand smoke or freezing and having clean air. I felt this was not healthy for my children and we just could not take it anymore. Since the landlords neglected to fix this problem we let them know we would be moving out at the end of the month (we paid our rent on a month to month basis). We ended up moving out even sooner because it was so intolerable. I feel we are entitled to recover the rent we paid in advance for the days we no longer resided in the house because I feel they breached the covenant of quiet enjoyment and the implied warranty of habitability. We are taking them to small claims court for this and a few other things. They claim we breached the contract by not giving them 30 days notice and want to sue us for 1 months rent even though they suffered no financial loss. The house was rented on the first day of the month after our rent was paid up to. I would like to know if we have a case against them to recover our rent or if they have a case against us for breach of contract. I'm sorry this was so long.

 

[LL]

I am very curious about the outcome of this case, because I want to forbid smoking in my own apartments. Evidently, it is not such a simple matter. I would appreciate hearing about the outcome, in fact if you are in Southern California and want to announce the day and place of trial, I might come and listen.

You didn't say where in California you are, and that may make a big difference.

I personally don't think that you will win, or win much, although I am not rooting for the other side.

I think that the primary issue is that you did not seek out a smoke-free environment, in fact you probably inspected the premises before you rented them. If you think that your rights of quiet enjoyment have been violated, what would the tenants say about being asked to stop their smoking in the own premises? Of particular interest to me is how you will handle the problem of implied warrantee of habitability and how the court would respond.

If you are willing to pass on the date, courthouse and department (maybe also case number) I am interested (if you are in Southern California). Otherwise, I am interested in the outcome.

 

[dj1]

Well I feel for you, I dont smoke and I dont like it when others do either.

But unless it is in the lease that it is a non smoking building, then how are you to proceed against the LL or tenant who both smoke?

The only thing i might be able to come up with, is if the landlord implied that he wont rent to smokers and you rented the apartment on that assumption, especially if you have a witness(hubby), it might fly in front of a judge, if you have paid your rent on time and have no other compliants against the landlord.

But if you have other complaints,a judge might figure you are just adding more so you can stack the deck against the LandLord, and have a better chance of winning.

 

[w8n4ufo]

I live in Southern California in the Antelope Valley area. We also had a problem with mice leaving their droppings in the kitchen that the landlords would not resolve either which I believe contributes to the lack of habitability as well. Actually there were so things wrong, but the cigarette smoke and mice were the most health infringent. I feel that because cigarette smoke is known to cause cancer and is not even allowed in restaurants, bars, workplaces, etc. in California that it would be very unreasonable to expect us to be subjected to it daily in our own home. My husband even smokes, but has never done it in the home because we do not want our children exposed to it. I also believe that asking her not to smoke in her apt. was not the only avenue they had to take, but they did not seek out other options. If the smoke was entering our home through the heating vents they could have had the heating system inspected to see what could be done in that area. They just refused to do anything. Also, when we initially rented the house the original garage tenant did not smoke, so it wasn't even an issue. As far as the rights of quiet enjoyment, I feel our right to clean air should be considered more important than her right to smoke - if she wants to harm her health that is her perogative, but why should she be allowed to harm ours. But even still, we should both be allowed to enjoy our own premesis without infringing on the other. Our case could be a very interesting one, in addition to that we have issues with shared utilities which were in our name and reimbursement we are seeking for expenses incurred in attempts to bring the house to a habitable state (long story behind both those issues as well). The landlord also in asking us for money gave us another copy of the original lease which she altered with respect to the utility issue. We have our copy from when we first rented the place and intend to bring this to the attention of the judge, it will give the judge an idea of how credible she is. I am going to file my small claims case today or tomorrow and when I get the info on the date and other details I'll let you know so you can attend if you'd like.

 

[LL]

As usual, dj has no idea of the issues involved.

He also always thinks that NY law is the basis of all law (Mt. Sinai is in NY, but its a hospital) and he has no idea about the environment of California.

 

[LL]

Unfortunately, this case is not as interesting as I thought it might be.

It is not a clean case, where the whole point is the question of smoking and any right to leave immediately for habitability reasons.

Now, you say that there are mice, utility dispute, expenses for "bringing the house to a habitable state", claims of altered documents. All of this puts the smoke rights issue into the background, and in fact, makes it the least important issue. It will probably never even be given any serious consideration, and the case will be decided on other grounds.

You said that you live in Antelope Valley, but you did not say where you were going to file. If you are filing in Palmdale, the guy who hears Small Claims cases is an 80 year old referee. Lancaster is much more crowded and probably won't give you a lot of time.

I don't want to be rude, but lets face it, Antelope Valley is not exactly a center of legal talent. I don't know what to expect from the local court, but its not exactly Century City, or Westwood.

The questions of mice and of the utilities are pretty cut & dried under California law, although of course there can always be disputes over the facts. The expenses for "bringing the house to a habitable state" probably depend on any agreements you may have made, and submitting altered documents in court is illegal.

I expect that the judge (referee, etc) will decide this case in 5 seconds, and based on some simple criteria that has nothing to do with the smoke.

Small Claims court is usually not a place to try principles anyway, although I have done that (including one important decision that is followed throughout Los Angeles). The decision is not binding on any other case, there is no transcript, no lawyers, usually the least qualified judicial officers, unless you take steps to see that a highly qualified judge gets to hear this and to take it seriously. Despite my interest in the subject, I probably won't come all the way out to hear this, but I appreciate your willingness to share your problem. If the case had really stuck to the issue of smoke, I would have been glad to hear about it, even to share some thoughts.