HELP PLEASE - Smoker and the Landlord

[Davidca]

What is the name of your state? California

I live in an 80 year old 4-unit building in San Francisco. The only apartment in the building with a smoker is below me and for the most part, he smokes on the sidewalk. However, he will quite often light up in his apartment or in the step area outside our doors and because of air currents in the courtyard and my bedroom window being above the step area, the smoke always comes into my bedroom window. Our leases state that the landlord has the right to post rules at will. However, the landlord (who lives in the building also) doesnt care about anything and is unwilling to TELL him to stop all smoking in the courtyard and will only go to the point of asking him to be careful, which the tenant obviously doesnt do. Now, this tenant has started to have a smoke around 1030pm so the smoke comes into my bedroom just as I am going to sleep every night.

MY QUESTION IS: Do I have any legal right to sue the landlord or smoker tenant? What does the law say? Would a "quiet enjoyment" premise win a suit for me?

 

[BL]

When your lease is up move , you have no rights to no smoke based on your post .

 

[panzertanker]

MY QUESTION IS: Do I have any legal right to sue the landlord or smoker tenant? What does the law say? Would a "quiet enjoyment" premise win a suit for me?

Based on your post, no.

You have the right to close the window.
What you are asking to sue about is tantamount to trying to sue the city b/c their buses send fumes in your window when they drive by. You have every right to close that window and not be effected by those fumes.

Sorry.

 

[Davidca]

Smokers have no rights......

Please don't answer the question if you dont know the law. So far I have found:

- There is no constitutional right to smoke. Claims to the contrary have no legal basis. No court has ever recognized smoking as a fundamental right nor has any court ever found smokers to be a protected class.1

-There are groups of people - such as groups based on race, national origin and gender - that receive greater protection against discriminatory acts under the U.S. and California constitutions than do other groups of people. Smokers have never been identified as one of these protected groups. This is because smoking is a behavior, not a condition of birth. Smoking is not an "immutable characteristic" because people are not born as smokers; smoking is a behavior that people can stop.

"As a general rule, property owners are permitted to impose restrictions on their tenants unless those restrictions violate existing laws or are discriminatory. A smoke free policy is no different than a no pet, no loud music, or any other policy that protects other tenant's well-being or landlord's property. Common law generally affords the owner with a right (and in some cases, obligation) to protect other tenants and the owner's property."
David Ezra, Attorney-at-Law, Orange County

 

[shell007]

Please don't answer the question if you dont know the law. So far I have found:

- There is no constitutional right to smoke. Claims to the contrary have no legal basis. No court has ever recognized smoking as a fundamental right nor has any court ever found smokers to be a protected class.1

-There are groups of people - such as groups based on race, national origin and gender - that receive greater protection against discriminatory acts under the U.S. and California constitutions than do other groups of people. Smokers have never been identified as one of these protected groups. This is because smoking is a behavior, not a condition of birth. Smoking is not an "immutable characteristic" because people are not born as smokers; smoking is a behavior that people can stop.

"As a general rule, property owners are permitted to impose restrictions on their tenants unless those restrictions violate existing laws or are discriminatory. A smoke free policy is no different than a no pet, no loud music, or any other policy that protects other tenant's well-being or landlord's property. Common law generally affords the owner with a right (and in some cases, obligation) to protect other tenants and the owner's property."
David Ezra, Attorney-at-Law, Orange County

So...does your lease have a "NO SMOKING POLICY"?

As you stated above: "property owners are permitted to impose restrictions on their tenants..." does NOT mean the same as "REQUIRED"

 

[BL]

"As a general rule, property owners are permitted to impose restrictions on their tenants unless those restrictions violate existing laws or are discriminatory. A smoke free policy is no different than a no pet, no loud music, or any other policy that protects other tenant's well-being or landlord's property. Common law generally affords the owner with a right (and in some cases, obligation) to protect other tenants and the owner's property."

If the Landlord were to impose a " NO SMOKING " policy on all tenants in the building , then you would have legs .

The Landlord has no such policy in place , as per your post , therefore the landlord has no obligation to you for a smoke free environment .

It is legal to smoke ...

 

[panzertanker]

Please don't answer the question if you dont know the law.

I will make you a deal:
Don't ask a question if you aren't going to listen to the CORRECT and LEGAL answer.

Blonde Lebinese, Panzertanker (myself) and Shell007 have all answered your question correctly.

As stated, (since you seem to be too thick-headed to understand the 1st 2 times you were told) YOU HAVE NO LEGAL LEG TO STAND ON. Your lease has no clause in it that imposes a no-smoking policy in force, therefore you are out of luck.

Your landlord COULD impose a no smoking policy, but until he does you are out of luck. (see the pattern here???)

Lastly, CLOSE YOUR WINDOW. This will alleviate your issue. If that is unacceptable to you, move (when your lease expires) to a building that has a no smoking policy already in effect.

(I absolutely HATE when a poster, such as yourself, is given the correct legal answer and then acts like a child who wants his toy at the store. Temper tantrums will not get you a different legal answer.)

 

[Gadfly]

You also have the right to pay for a window fan, install it in your window and have it blow the smoke away from your window.

PS. Jerks are not a protected class either.

 

[ecmst12]

Just because smokers are not a constitutionally or legally protected class, doesn't mean that non-smokers have a legal right not to be exposed to smoke.

 

[tranquility]

In the last few years, there has been an increased fear in California landlords over this issue. The weird thing is that the protections stem from those stupid proposition 65 signs regarding exposure to toxic chemicals. Especially with the Surgeon Generals recent report, this litigation is sure to increase. Managers of large complexes have been sued in class actions over silly things because they failed to warn.

I only hope the smoker is not offended by the OP's flatuence. Then, they both could sue the landlord and no one gets to stay. (After an appropriate wait to diminish a retaliation claim.)