Should I take apartment landlord to court for not enforcing their no-smoking addendum of their lease?

[cbg]

If medical marijuana is prescribed by a physician could there be an ADA issue?

My knowledge of the ADA is limited to employment situations but it's an interesting point.

Of course, as yet we don't know that it's medical marijuana prescribed by a physician or not.

 

[PDonnie]

Understand that just because YOUR lease bans YOU from smoking doesn't give you any rights to demand the landlord bar others (regardless of whether it is in your lease). The lease gives the landlord the right to take action against them, not you. Unless your lease says that the landlord will provide the place as a smoke-free environment, you have no right to force him to do anything. The only option you MIGHT have is to be able to sue to break the lease on the basis of the nuisance or health violation. Note that Virginia doesn't allow such actions in small claims, only money damages up to $5000 or replevin actions.

To follow up on Quincy, yep, things are much the same in Virginia. As of last summer, you can smoke pot in Virginia, but landlords are free to enforce no-smoking policies.

The no-smoking addendum of the lease I signed with them, as all residents sign in this community, prohibits smoking of any substance within the buildings on their property... Cigarettes, vaping, marijuana, etc. They have reminded residents as such in the aforementioned two identical door notices they placed a few weeks ago, about two weeks apart from one another. I don't remember if no smoking extends to the balcony/patio areas... I'll read the addendum again. But the neighbors have been seen smoking there. I don't the addendum would apply to there. Even I think that's harsh.

 

[zddoodah]

You have a right to "quiet enjoyment" of your home (it's a term of art that means more than the name applies; google if you need more info). If every lease requires every tenant to refrain from smoking (or if this particular tenant's lease has such a provision) and your landlord fails to enforce it, then your landlord is violating your right to quiet enjoyment. It's not a matter of having standing under someone else's lease, but your landlord owes you a duty to enforce things like this against other tenants. Suing while still living there might not be the smartest move, but I strongly encourage you to consult with a local attorney for advice.

 

[FlyingRon]

You're not paying attention. The lease binds the responsibility YOU have and YOUR landlord specifically have. Unless it says "The landlord will keep others from smoking" just because they have a clause in their lease similar to yours doesn't give you any right to force him to do something.

 

[Ohiogal]

I am confused by the "marijuana is legal" argument. So is tobacco legal, but there doesn't appear to be an issue with prohibiting that.

Marijuana can be PRESCRIBED as a medical treatment. That is the difference.

 

[PDonnie]

Understand that just because YOUR lease bans YOU from smoking doesn't give you any rights to demand the landlord bar others (regardless of whether it is in your lease). The lease gives the landlord the right to take action against them, not you. Unless your lease says that the landlord will provide the place as a smoke-free environment, you have no right to force him to do anything. The only option you MIGHT have is to be able to sue to break the lease on the basis of the nuisance or health violation. Note that Virginia doesn't allow such actions in small claims, only money damages up to $5000 or replevin actions.

To follow up on Quincy, yep, things are much the same in Virginia. As of last summer, you can smoke pot in Virginia, but landlords are free to enforce no-smoking policies.

I'll repeat, this community has been vocal about being a no-smoking community. I'm just in a situation that has not yet been solved, and from my vantage point, has been too complex for management to want to attempt to attain proof. I suggested a simple changing of air filters or a proptery inspection. My previous community would change air filters every 3 months... This community has not done it yet since I've been here since August. And I know they haven't I've been teleworking

 

[FlyingRon]

You have a right to "quiet enjoyment" of your home

I alluded to that, but the remedy for the breach of quiet enjoyment (or perhaps habitability) is to get him out of the obligation to continue to reside there and pay the rent.

 

[FlyingRon]

I'll repeat, this community has been vocal about being a no-smoking communit

I'll repeat, there is no obligation to force the landlord to enforce this.
You can get out of the lease, possibly recovering costs to move, etc... Fortunately landlord-tenant while not falling under the small claims provisions, is still heard principally in General District Court, which is a rather informal place (possibly one step above Judge Wapner).

So what I would do is write a letter (ON PAPER) and mail it (with a stamp) to the landlord expressing your concerns and problems and asking for remedy. If that doesn't work, go to court. Don't expect that the resolution be what you want it to, however.

 

[cbg]

Marijuana can be PRESCRIBED as a medical treatment. That is the difference.

But we have yet to confirm that this is medically prescribed. From the OP's description, management simply declared that because marijuana is legal, they couldn't so anything.

Now, I grant you the possibility that management may know something that the OP does not. But the statement, as described by the OP (and yes, I realize he may be paraphrasing) does not follow logically.

 

[quincy]

But we have yet to confirm that this is medically prescribed. From the OP's description, management simply declared that because marijuana is legal, they couldn't so anything.

Now, I grant you the possibility that management may know something that the OP does not. But the statement, as described by the OP (and yes, I realize he may be paraphrasing) does not follow logically.

That is why I suggested letting the landlord know about marijuana edibles. A person might have a legitimate medical reason for using marijuana but the marijuana does not necessarily need to be smoked to be effective.

It is also possible that the landlord has not been able to prove a specific tenant is smoking. The landlord could advise ALL tenants that apartments will be inspected on a particular date but, again, unless a tenant is openly and defiantly smoking when the landlord inspects the property, proof of a violation would be lacking.

 

[PDonnie]

I'll repeat, there is no obligation to force the landlord to enforce this.
You can get out of the lease, possibly recovering costs to move, etc... Fortunately landlord-tenant while not falling under the small claims provisions, is still heard principally in General District Court, which is a rather informal place (possibly one step above Judge Wapner).

So what I would do is write a letter (ON PAPER) and mail it (with a stamp) to the landlord expressing your concerns and problems and asking for remedy. If that doesn't work, go to court. Don't expect that the resolution be what you want it to, however.

Firstly, I thank you all for the perspectives

Secondly, I'm trying to do all this during a medical crisis, and while trying to work, so anyone calling me out for "not paying attention" should be extremely proud of themselves

Thirdly, for an update: All things considered, especially after this thread, I don't want to move. My roommate, and best friend, doesn't want to move. His mother's health is failing and he needs much more short term stability than I. I'd hate for the property to terminate the lease or not renew because of me, even though I genuinely am entirely suffering. Our lease would end in a little less than 3 months now. If it were just me, I'd be more willing to take a risk with some sort of legal action and hiring a local attorney, documenting my grievances, etc. But because of my best friend, I may have to tough this out a month or two and see what happens. I'll have to go stay with relatives for a while... I emailed this property's corporate headquarters resident relations for help. Initially, I allowed my emotions to get the better of me in part of the initial email which I'm mad at myself about. But that's what these past 6 weeks cumulatively have don't to me. I recanted, was much more professional in a follow up email hours later and just pleaded for one on one dialouge, help, and working towards solution so that my roommate (him mainly) and I can stay here longer in a clean, safe, smoke-free environment again as it was and as it was advertised to us. As it stands, I have no response.

Thank you all for your counsel. I was not expecting such resounding output.

 

[PDonnie]

But we have yet to confirm that this is medically prescribed. From the OP's description, management simply declared that because marijuana is legal, they couldn't so anything.

Now, I grant you the possibility that management may know something that the OP does not. But the statement, as described by the OP (and yes, I realize he may be paraphrasing) does not follow logically.

I've told that to management myself a couple of times. They are likely to know more about the situation than I. But historically, never mentioned medical marijuana to me as possibility, which I know it is. They also just throw it out there to me that marijuana is legal in the state now to smoke, which, to me in this context, is a red herring

 

[Zigner]

Just to be clear. There is NOTHING that you can do to force the landlord to take action against the other party. Any "legal action" would only be towards the goal of releasing you from your lease obligations so that you can move early without being penalized.

 

[PDonnie]

Just to be clear. There is NOTHING that you can do to force the landlord to take action against the other party. Any "legal action" would only be towards the goal of releasing you from your lease obligations so that you can move early without being penalized.

Thank you. As this thread has gone on, I've started to learn that fact more and more easily. Whether it's right, wrong, or neither. Point is, I'll never trust a community that claims to be no smoking ever again. I came to this place after being at another community four years dealing with the same secondhand marijuana smoke issue. It's the main reason I left the previous community. We were assured they were no smoking, and then reassured after seeing the addendum. Only the previous issue was nowhere near as chronic, and whenever door notices were placed, they would stop the smoking for a while. This is constant, maybe 7-15 times daily, I can't keep track. I guess the grass is always greener...or not always greener.

Anyway, thank you again.

 

[PDonnie]

Because of no-smoking laws in the Michigan community where I have rentals, I changed my leases to include “smoke free” provisions. You should carefully read your lease where it speaks to smoking and the actions management will take should the smoking prohibition not be adhered to. Look at the provisions on how management handles lease violations.

In my leases, for example, it states that violations of the no-smoking provision is considered a material breach of the lease “subject to the default provisions and consequences” described in the lease for material breaches. Violations of the leases can result in eventual termination of a lease or eviction but my leases also say that the landlord “cannot guarantee a totally smoke-free environment at all times and cannot warranty that the environment will be free from secondhand smoke.”

Violations of provisions of leases do not always result in eviction. Landlords often issue warnings first and you might not be privy to what your landlord has done to try to remedy the problem through warnings or through other means (my office provided links to smoking cessation clinics).

An additional note that might be something to present to your management: Marijuana use can be legal (it is in Michigan) and so my leases allow for edible marijuana products but marijuana smoking is still a violation of the smoking provision.

Yes what you say sounds very familiar and to the language of their addendum. At first they were very responsive to my reports of smoke on the property. Now, like you say, could be anything. They could have given up, could be actually be investigating the issue and staying quiet. I just don't know. The smoke is affecting existing health issue though, so for now, will stay here less at night's but have to continue to work here during days unfortunately.