Neighbors Smoking in Non-Smoking Complex, Landlord Keeps Giving Second Chances

[lsufan1987]

My wife and I live in a non-smoking marijuana-free rental condo in Colorado, and we have reported our neighbors for smoking marijuana and filling our unit with the smell 4 times (we have record of this via text message) as our basement walls are thin and their activities would fill our house. We eventually stopped reporting them, because nothing ever happened and we had other more pressing things to deal with than neighborhood politics. Our neighbors actively ignored us when we saw them while we were very cordial, even letting them know when they had their car windows open and it was about to rain, etc.

We finally got fed up, and told our property manager (the only person we can talk to, our landlord refuses direct communication) we were about to break our lease. Our landlord told us she was going to not renew our neighbors' lease, and asked us to be patient. We told her were worried, after 4 previous attempts, that nothing would happen yet again, even as she was saying this. She was very condescending, and told us that we should have said something about the smoke sooner. (Remember, 4 previous attempts.)

Well, she gave them a 30 day grace period to "prove themselves" and then re-sign the lease. Again. Now we have neighbors who hate us, and a landlord whose word we cannot trust for one second.

We asked to be released from our lease and get our deposit back, in a very active and high-demand rental community. She would have no problem filling the unit in a week, let alone by the end of the month.

Two laws I've found online:

Landlords in most states (for example, Arizona) must make a reasonable effort to re-rent their units when a tenant breaks a lease, rather than charge the tenant for the total remaining rent due under the lease. In Colorado, an old case imposes this duty on commercial landlords (Schneiker v. Gordon, 732 P.2d 603 (Colo. 1987)), but did not specifically extend the duty to landlords renting residential property. However, the case strongly suggested that such a duty would be fair and appropriate, and over the years, courts in many counties and cities have apparently taken the hint and required landlords to �mitigate damages� by trying to rent their property reasonably quickly, keeping their losses to a minimum. Unless you're advised differently by a local lawyer, you should assume that the duty to mitigate will apply to your landlord.

Section 38-12-503: Warranty of Habitability: In all residential leases the landlord is deemed to warrant (promise) the premises are fit for human habitation. This when the premises warranty is breached by the landlord are in a condition that is materially dangerous or hazardous to the tenant�s life, health or safety. Where the tenant believes this warranty has been breached, the tenant is required to give written notice to the landlord describing the condition, and allow the landlord a reasonable time to cure (fix) the problem. The written notice must state the landlord has five (5) days to repair.

Where the condition is caused by the tenant, the tenant�s guests or invitees, the condition is not a breach by the landlord.

If the tenant is a victim of domestic violence, it is not misconduct on their part, where the condition on the premises is a result of such violence, and the tenant gives the landlord written notice of the abuse and the resulting condition.

The landlord may move the tenant to another, comparable unit, as a means of fixing the problem, if the landlord pays the reasonable costs, actually incurred by the tenant, due to the move.

What should we do? Do we have the legal right to getting our deposit back? We are very uncomfortable, and feel like as our lease has been violated by our neighbors and it has affected us we can do something.

 

[Gail in Georgia]

So you want to break your lease and get your deposit back although you've stopped complaining about the marijuana smell and because your neighbors hate you and you don't think your landlord is a very trustworthy parent to you.

Is that about right?

Your options..

1. Move out at the end of your lease and if you leave your rental unit is good shape you should get your security deposit back within the required time period for your state (typically not immediately at move out).

2. Talk to your landlord about breaking your lease early with you working to find a suitable replacement tenant to take your place.

3. Break your lease and hope your landlord doesn't file for an eviction which would end up on your credit history (and you may lose your deposit if it's used for rent until the landlord can find another tenant to re rent the unit).

Number 1 and 2 sound like the most reasonable approach here.

Gail

 

[xylene]

Your neighbors smoking is an offense against the landlord's rules, not you.

Your warranty is not breached by your neighbors legal activities.

 

[DeenaCA]

Here's an interesting article on the subject from the CO Association of Realtors: http://www.coloradorealtors.com/can-you-just-say-no-to-marijuana/

When a state law says no person shall be penalized for using marijuana, does evicting a tenant who violates a property owner’s no-pot policy constitute a penalty? The question is still being tested in the legal system, but housing experts say state courts are likely to err on the side of “yes.” So for landlords and property managers, there’s real concern not only about creating a zero-tolerance policy but also about enforcing one.

Information about tenant rights in CO: http://cdn.publicinterestnetwork.org/assets/3zUpZ46l6OhlbkR6DlAndw/Tenant-Rights.pdf. There's a section on "Getting Out of a Lease."

You might want to consider a single-family home for your next residence.