Repairs, Maintenance Renting a place uninhabitable from the start

[4bidden450]

A friend and I found a place to rent that we liked but it smelled like smoke due to the current tenant (and owner) being a smoker. We spoke about the issue and how my roommate was allergic and spoke about how to remove it and were hopeful that by our move-in date that the smell would be gone.

A pro-rated rent of $1306, deposit of $1700, and a key deposit of $100 was paid. $3106 total at lease signing (approx 5 days before move-in date).

On our move-in date the place still smelled of smoke horribly. We tried painting the walls, steam cleaning carpets, and all previous furniture was removed. Zero cleaning was done before we moved in. Visible nicotine still exists in the unit. We had to specifically tell the landlord that he needed to get the carpets steam cleaned to help remove the odor and this service was performed on the 2nd day after our lease was to start so we were still unable to move in. The carpet cleaning did not help. We then met with the landlord and a smoke restoration company on the 3rd day of the lease and got a quote for $1300. After the company left the landlord told us he did not have the money to pay for this service and offered us 2 options: he would "let us out of the lease" or I could front the cost and take it off the first 3 months rent.

After talking my roommate and I decided it would be best to just get out of the lease like the owner said he would let us do. Well today comes and now he said we can get out, but only by terminating the lease and being liable for any and all rent until he finds new renters. He also went into the unit without our permission and proceeded to lock us out. So we are out of all of our money and locked out of 'our' place. We never signed anything saying we were going to terminate it.

So... my question is, do we have any ground to get out of this lease and have all funds returned to us? The premises is uninhabitable and does not allow for peaceful enjoyment of the property. It was like this from day 1 of our lease and I don't feel we should be liable for any costs.

If it means anything the lease we signed also has a no smoking clause in it. Not allowed to smoke inside of a place that reeks of smoke? ha

 

[MorgansDaddy]

You would be screwed if you broke the lease and he sued you, until he illegally "evicted" you by locking you out. Your best bet in this case is to speak to a lawyer in your area. You will find yourself in court for this, especially if you want any o the money back that you paid for a place you never moved into.

 

[army judge]

A friend and I found a place to rent that we liked but it smelled like smoke due to the current tenant (and owner) being a smoker. We spoke about the issue and how my roommate was allergic and spoke about how to remove it and were hopeful that by our move-in date that the smell would be gone.

A pro-rated rent of $1306, deposit of $1700, and a key deposit of $100 was paid. $3106 total at lease signing (approx 5 days before move-in date).

On our move-in date the place still smelled of smoke horribly. We tried painting the walls, steam cleaning carpets, and all previous furniture was removed. Zero cleaning was done before we moved in. Visible nicotine still exists in the unit. We had to specifically tell the landlord that he needed to get the carpets steam cleaned to help remove the odor and this service was performed on the 2nd day after our lease was to start so we were still unable to move in. The carpet cleaning did not help. We then met with the landlord and a smoke restoration company on the 3rd day of the lease and got a quote for $1300. After the company left the landlord told us he did not have the money to pay for this service and offered us 2 options: he would "let us out of the lease" or I could front the cost and take it off the first 3 months rent.

After talking my roommate and I decided it would be best to just get out of the lease like the owner said he would let us do. Well today comes and now he said we can get out, but only by terminating the lease and being liable for any and all rent until he finds new renters. He also went into the unit without our permission and proceeded to lock us out. So we are out of all of our money and locked out of 'our' place. We never signed anything saying we were going to terminate it.

So... my question is, do we have any ground to get out of this lease and have all funds returned to us? The premises is uninhabitable and does not allow for peaceful enjoyment of the property. It was like this from day 1 of our lease and I don't feel we should be liable for any costs.

If it means anything the lease we signed also has a no smoking clause in it. Not allowed to smoke inside of a place that reeks of smoke? ha

You should not have signed the lease and paid any money until the unit met your level of satisfaction.

Any promises made by the landlord were that, mere promises, useless promises, unenforceable promises.

If it ain't in the lease, it ain't gonna be done.

Unfortunately, you're now stuck with the apartment because you signed the lease.

If you leave and break the lease without paying a buyout, you further screw yourselves.

 

[4bidden450]

This is something I found online.

Under a 1974 California Supreme Court decision, Green v. Superior Court, all leases and rental agreements are now deemed by law to include an implied warranty of habitability. This means that regardless of any conflicting lease agreement, the landlord is required to keep your unit in a habitable condition at all times.

"Habitable" means that the apartment conforms to the standards set forth in California Civil Code Section 1941.1, as listed above. Even if you knew that a unit was below code when you moved in, you still have the right to demand that it be brought up to habitable standards.

and this....

If your apartment "substantially lacks" any of the things listed in California Civil Code 1941.1, and the landlord has not fixed the problems within a reasonable time after being notified of the condition, the law allows you to move out in the middle of your rental agreement. This is called a "constructive eviction" -- when a unit is uninhabitable and therefore the tenant is forced to move out. You must have written documentation of the problems, such as NOVs, letters, pictures, etc., in order to do a constructive eviction.

You do not have to give notice that you are moving out, but it is a good idea to write a letter to your landlord stating your intention to exercise your right to move out under California Civil Code Section 1942.

You can also sue your landlord for a rent refund for the time you were paying rent while living with serious repair problems. If your are suing for less than $5,000, you can sue in Small Claims Court. Contact an attorney or legal clinic.

Both would seem to apply here. Thoughts?

 

[Gail_in_Georgia]

Two issues (both would likely be brought up in court should the landlord sue you for breaking the lease)

1. Does a smell of smoke fall into the category of making a unit "uninhabitable".

2. Is a landlord only required to make a reasonable attempt to remedy a request when tenants were aware of the environment prior to signing the lease.

Gail

 

[4bidden450]

In the limited amount of time spent in the unit doing our own cleaning, my roommate has begun to couch up a mucus. We have taken photos of this. I would think that this would easily make the place uninhabitable and a safety issue.

Here are multiple cases involving judgements for the tenant where secondhand smoke was involved:

Fox Point Apt. v. Kippes, No. 92-6924,(Lackamas County (OR) Dist. Ct. 1992). The landlord moved a known smoker into the apartment below a nonsmoking tenant who began to suffer nausea, swollen membranes and respiratory problems as the cigarette smoke entered her apartment. The tenant sued the landlord, alleging that the landlord had breached its statutory duty to keep the premises habitable and the covenant of peaceful enjoyment which the common law implied in every rental agreement. The jury unanimously found a breach of habitability, reduced the plaintiff's rent by 50 percent and awarded the tenant medical costs.



Donath v. Dadah, et al., No. 91-CV179 (Worcester Cty., MA, Housing Court Dept. 1991). A tenant sued her landlord for nuisance, breach of warranty of habitability, breach of the covenant of quiet enjoyment, negligence, battery and intentional infliction of emotional distress due to exposure to secondhand tobacco smoke in her home emanating from the second floor apartment of the defendants. The plaintiff alleged that she had suffered asthma attacks, labored breathing, wheezing, prolonged coughing bouts, clogged sinuses and frequent vomiting due to the exposure to secondhand smoke in her home. The case was settled for an undisclosed sum of money. She moved out of the apartment shortly after filing the lawsuit.



Dworkin v. Paley, 638 N.E.2d 636,93 Ohio App. 3d 383, (Ohio App. 8 Dist. 1994). A nonsmoking tenant, Mr. Dworkin, entered into a one-year lease with the landlord, Ms. Paley, to reside in a two-family dwelling. The lease was later renewed for an additional one-year term. During the second year, Paley, a smoker, moved into the dwelling unit below Dworkin's. Two weeks later, Dworkin informed Paley in writing that her smoking was annoying him and causing physical discomfort. Dworkin noted that the smoke came through the common heating and cooling systems shared by the two units. Within one month, Dworkin vacated the premises. Eight months later, he filed a lawsuit to terminate the lease and recover his security deposit from Paley. The legal action, alleging that Paley had breached the covenant of quiet enjoyment and the statutory duties imposed on landlords (including doing "whatever is reasonably necessary to put and keep the premises in a fit and habitable condition") was dismissed on a motion for summary judgment. The court of appeals reversed the dismissal, concluding that exposure to secondhand tobacco smoke could constitute a breach of the covenant of quiet enjoyment. The appellate court remanded the case for further proceedings, finding that a review of the affidavits presented "the existence of general issues of material fact concerning the amount of smoke or noxious odors being transmitted into appellant's rental unit."



Pentony v. Conrad et al., NJ Super. Ct. (1994). The plaintiffs sought an injunction preventing their downstairs neighbors from smoking between 4:00 P.M. and 9:00 A.M. (when the Pentonys would be home from work) in their apartment because the secondhand smoke seeped throughout the Pentonys' apartment. After a two-hour hearing, the judge ordered the apartment complex directors to try to resolve the dispute out of court. The neighbors settled their dispute, but the terms of the settlement remain confidential. See "Neighbors Settle Smoking Dispute," The Record (Bergen County, NJ), March 2,1995,C12; "2 Smokers Are Sued by Neighbors in Apartment Above Them," New York Times, April 28,1994,B6; "US Couple Sue Downstairs Neighbors for Smoking, The Times, April 29,1994; Gold, J., "Judge Rejects Bid to Stop Neighbors Smoking," The Record (Bergen County, NJ) S06; Hanley, R., "Judge Turns Down Couple in Quest of Anti-Smoking Order Against Their Neighbors," New York Times, April 29,1994,B5; "Couple Whose Neighbors Smoke Sent to Co-op Board," Orlando Sentinel, April 30,1994,A18; "Judge: Neighbors' Smoking Dispute Must be Resolved by Board," The Legal Intelligencer, May 2,1994,8; "Complex Orders Repairs in Fight Over Smoking," The Record (Bergen Counting),May 13,1994,A27; "Truce Is Reached in a Co-op Clash Over Smoking," May 13,1994,B4; Boronson, W., "Love Thy Neighbor: Different Ways to Cope with the Nuisance Next Door," The Record (Bergen County, NJ),May 15,1994,R1; and "Upstairs, Up in Smoke," National Law Journal, May 23,1994,A23.



Snow v. Gilbert, Middlesex City. (MA) Superior Ct., Docket No. MICV94-07373 (1994). A woman suffering from multiple chemical sensitivity, pulmonary fibrosis and CREST, a form of scleroderma, won a temporary injunction against her landlord to prevent him from renting the units below hers to smokers, at least until she succeeded in finding another apartment elsewhere. The landlord was found to have violated an earlier agreement not to rent the units to smokers. The smoke emanating from the units rented to smokers consequently seeped into the plaintiff's apartment, causing a severe reaction.



Layon et al. v. Jolley, et al., Case No. NS004483, Superior Ct. of Calif., Los Angeles County (1996). The plaintiffs sought an injunction prohibiting harassment. According to the complaint, the plaintiffs' condominium sat above a garage where the defendants smoked marijuana, cigarettes and cigars. The exposure to secondhand smoke had forced the plaintiffs "to evacuate our own home for hours every time the defendant goes in his garage to smoke." The court issued a restraining order, specifying, "Defendant must stay away from his garage while smoking." See Russell, K., "Court Clears the Air," Press-Telegram, April 26,1996.



In re U.S. Department of Housing and Urban Development (HUD) and Kirk and Guilford Management Corp. and Park Towers Apartments, HUD Case No. 05-97-0010-8,504 Case No. 05-97-11-0005-370 (1998). Two complaints were filed in September 1996 by Nancy V. Kirk under Section 504 of the Rehabilitation Act of 1973 and the Fair Housing Act of 1968 against Guilford Management Corp. and Park Tower Apartments. Ms. Kirk claimed that she had a respiratory condition that was aggravated by exposure to her neighbors' secondhand tobacco smoke, which seeped into her apartment at Park Tower, a HUD-subsidized high-rise for the elderly and the disabled. The parties entered into a conciliation agreement, which was approved by HUD. The agreement provided that Park Tower would go smoke-free, beginning with new tenants only, who moved in on or after March 15,1998. Smokers could move in, but only if they agreed to comply with the no-smoking policy. Violators of the no-smoking policy would be subject to written warnings and eventually to eviction. Since the transition to a smoke-free building would take many years, Park Tower agreed to inquire of several tenants currently residing in an area of the building having fewer smokers as to their willingness to be relocated elsewhere in the building, thus making available an apartment for Kirk to move to a less smoke-filled area.



50-58 Gainsborough St. Realty Trust v. Haile, et al., 13.4 TPLR 2.302,No. 98-02279,Boston Housing Court (1998). A nonsmoker who lived with her husband in an apartment directly above a smoky bar was sued by her landlord for failure to pay rent. The tenant had withheld the rent, alleging that the smoke seeping into her apartment deprived her of the quiet enjoyment of that apartment. A Housing Court judge ruled that the amount of smoke from the bar below had made the apartment "unfit for smokers and nonsmokers alike." The judge found that "the evidence does demonstrate to the Court the tenants' right to quiet enjoyment was interfered with because of the second-hand smoke that was emanating from the nightclub below." The judge awarded the tenants $4,350. See Estes, A., "Tenant Wins Suit over Smoky Home," Boston Herald, June 10,1998,1,4; and "Judge: Landlord Must Stop Secondhand Smoke," The Recorder (Greenfield, MA), June 11,1998,9.



Weil, Gotshal & Manges LLP v. Longstreet Associates, L.P., et al., 13.4 TPLR 3.188,Supreme Court of the State of New York (1998). A large law firm in a New York City office building filed suit against the landlord and a tenant located one floor below its offices. The law firm alleged that the secondhand smoke emanating from the floor below had caused some of the firm's partners, associates and employees "illness, discomfort, irritation and endangerment to their health and safety" and prevented some of their personnel from being able to use or occupy their offices. The firm alleged that the landlord breached its contract and constructively evicted the plaintiff and further alleged that both defendants permitted a nuisance, engaged in trespass and were negligent. The law firm later dropped the suit because the owner and the tenant agreed to remedy the smoke problem voluntarily. See Gregorian, D., "Law Firm Smokin' Mad at Neighbors," New York Post, June 23,1998 22; and Arena, S., "Lawsuit Raises Stink Over Cigar Smoking," Daily News (New York), June 23,1998,17. See "Law Firms Drops Smoking Lawsuit," Crain's New York Business, September 14,1998,1.



Lipsman v. McPherson, 19 M.L.W. 1605 No. 90-1918, (Middlesex, MA, Superior Court 1991). A nonsmoking tenant sued a smoking tenant of an apartment in the same building, alleging nuisance and negligence because the smoke from the defendant's apartment regularly seeped into the plaintiff's apartment, causing him annoyance, discomfort and increasing his risk of physical harm due to exposure to secondhand tobacco smoke and of fire. The defendant filed a motion to dismiss. The court dismissed the claims for negligence and risk of fire, but allowed the claim of private nuisance to be heard. The defendant won at trial before a judge without a jury. The court ruled that the "annoyance" of smoke from three to six cigarettes per day was "not substantial and would not affect an ordinary person." It also held that the "plaintiff may be particularly sensitive to smoke, but an injury to one who has specially sensitive characteristics does not constitute a nuisance." Shortly after this decision, the Defendant moved out.

The fact that the landlord has currently locked us out (evicted) from our own place doesn't sit well with me either.

 

[Gail_in_Georgia]

Your landlord lockout is illegal.

As for the rest of what you've posted; these cases involve situations nonsmokers were exposed to smoke from others actively using tobacco/marijuana products in a working or living situation. Not your issue at all.

However, you seem to have made up your mind regarding this issue and there's likely nothing more we can advise you on.

Gail

 

[MorgansDaddy]

I don't think the you have a case for the smoking, however, I think the issue with the being locked out could be a case. Unless of course, you moved all of your belonging out, thus leaving the property abandoned? If that is the case, again you have screwed yourself by breaking the lease.

 

[4bidden450]

We never moved any property into the condo. All that was in there was some of the paint we were using to paint the walls in attempt to cover the odor, some cleaning supplies, and various painting tools we had purchased ourselves.

 

[MorgansDaddy]

Did you agree with the landlord that you would not be returning, or breaking the lease? Or, did he just decide to lock you out?

 

[4bidden450]

The last we knew was the landlord said he would 'let us out of the lease'. The agent was contacted and was to draft the addendum stating we were out of the lease and all monies were to be returned. Next thing I knew there was no addendum and we were locked out of the place.

 

[MorgansDaddy]

Never believe anything until you have it in writing. May be best to seek consultation from a local attorney, which sometimes you can find fairly cheap or free.

 

[Clarity904]

A renter can not give up their right to live in a habitable home no matter what clause or provision the lease holds. (Green vs. Superior Court 1974) If a condition is deemed uninhabitable, you can get out, period. Just because you stayed in the unit does not mean the unit was habitable. You may not have had the resources to move, affordable housing is difficult to come by lately, there are any number of reasons.

 

[army judge]

A renter can not give up their right to live in a habitable home no matter what clause or provision the lease holds. (Green vs. Superior Court 1974) If a condition is deemed uninhabitable, you can get out, period. Just because you stayed in the unit does not mean the unit was habitable. You may not have had the resources to move, affordable housing is difficult to come by lately, there are any number of reasons.

Yes they can!!!!!!

It may cost them dearly to do so, or they can just walk away and reap whatever consequences their poor choices provide.

They can't, however, walk away unscathed or at no cost; unless the landlord chooses to ignore their actions!

 

[Clarity904]

I'm sorry, Judge, but I must respectfully disagree. I have similar problems with my landlord, you may remember, I asked about screens. My landlord does not keep locks on the windows, has let the pipes rust to nothing, and won't fix the electrical breaker. I have spoken to a real estate lawyer and done a lot of homework. California law states that a landlord must keep a unit in habitable condition unless the tenant is the one that caused the problem, and no tenant can give up this protection no matter what the lease says. It will not be held up in any court. And by California law, I can move out with or without providing notice to my landlord and am safe from retribution. To be safe, I have issued a last email requesting the problems be handled and stated that I will move in 30 days if they are not resolved, which legally covers my end, but I didn't even have to do that much. No lease takes away the right to habitability no matter what it says. If the tenant did not cause the problem, they are in the clear.

 

[army judge]

I'm sorry, Judge, but I must respectfully disagree. I have similar problems with my landlord, you may remember, I asked about screens. My landlord does not keep locks on the windows, has let the pipes rust to nothing, and won't fix the electrical breaker. I have spoken to a real estate lawyer and done a lot of homework. California law states that a landlord must keep a unit in habitable condition unless the tenant is the one that caused the problem, and no tenant can give up this protection no matter what the lease says. It will not be held up in any court. And by California law, I can move out with or without providing notice to my landlord and am safe from retribution. To be safe, I have issued a last email requesting the problems be handled and stated that I will move in 30 days if they are not resolved, which legally covers my end, but I didn't even have to do that much. No lease takes away the right to habitability no matter what it says. If the tenant did not cause the problem, they are in the clear.

Many hold thoughts similar to yours.
Many have have been disabused of those thoughts upon losing a court battle.
Good luck!

 

[MorgansDaddy]

The apartment is not uninhabitable due to the smell of smoke if California law doesn't say it is. I guess you could argue that it falls under it not being fit for humans due to it not being healthy to live there if you can get a doctor to testify that you are "allergic" to the smell of smoke. I really don't see a case being won on the premise the you can't live there due to the smell of smoke. Never know how a court will rule though, so it is possible, but not likely in my humble opinion. Go to the link below for some very helpful information.


http://www.dca.ca.gov/publications/landlordbook/problems.shtml