evicting a tenant who smokes
December 2, 2007 9:00 AM   Subscribe

What to do about a tenant who's stinking up the place with cigarette smoke?

I recently inherited a house that has a tenant in a studio apt over the garage (attached to the house.) The rest of the house is empty. She smokes, and has been provided with an ashtray for outside use. The house REEKS of smoke every time I go in, and I'm worried about prospective buyers being put off by the stench. She insists she's not smoking in the house. How can I prove it, if I want to evict her? Her lease runs till next November.
posted by Ollie to Law & Government (15 answers total) 2 users marked this as a favorite
well, you probably need to talk to a lawyer if you want to evict her. you might be able to get her to move just by telling her that you're selling the house. check with your local laws to see how much notice you have to give her.

but she really may not be smoking in the house...smoke is sneaky like that. if there's an open window, or a vent, or even just a draft where she smokes, it can seep in.
posted by thinkingwoman at 9:05 AM on December 2, 2007

You say she has been provided with the means to smoke outside, but is it in her lease that she cannot smoke inside? If not, then she is not doing anything worthy of eviction, surely.

Also, as for the smell, if the house smells after a few hours of no-one being in it, then, in my opinion, they are smoking inside. My neighbour smokes, and I can smell it for a while after he walks past the door, or if he has a party of mates that are smoking, but it is always fresh smoke, and it always disperses. The smell of stale smoke is always a sign of smoking inside.

Also, people that smoke won't necessarily even notice it.
posted by Brockles at 9:14 AM on December 2, 2007

Does her lease provide that she can't smoke inside the house? You indicate that you just came into this inheritance, and she could well argue that she's been doing this as long as she's lived there, with no problems.

If you're seeking to evict before the lease term is over, you should most certainly consult a lawyer, since you're going to be trying to break a contract. You might want to try to negotiate the situation with her. Something along the lines of "I'll pay you now to move out so you can avoid litigation when I sell," or "I don't want to evict you in order to sell the house, so how about we agree that we'll work together to keep the smell of smoke out of the house for the foreseeable future."

Also, your profile doesn't indicate your coordinates, but the sale of a house does not automatically terminate a leaseholder's rights in all jurisdictions. In other words, the new owner might have to take the house subject to the right of the tenant to live out her lease. The new owner might not have to renew that lease at the end of the term, but don't assume that a sale automatically terminates the lease. This is the kind of question to ask your lawyer.
posted by lassie at 9:18 AM on December 2, 2007

The answer will depend, at the very least, on the country, state/province and possibly the city in which the property exists.
posted by rhizome at 10:32 AM on December 2, 2007

Why do you want to evict her? Leave her alone.

You could prove she was smoking in the house by either getting a confession, documented surveillance, or witness accounts.
posted by Brocktoon at 11:35 AM on December 2, 2007

Put tons of smoke alarms everywhere.
posted by gatchaman at 11:46 AM on December 2, 2007

The house REEKS of smoke every time I go in, and I'm worried about prospective buyers being put off by the stench. She insists she's not smoking in the house.

Wait, if she's in a studio above the garage, and you think she's smoking in the house, shouldn't you be more concerned about the trespassing?

Or is this one of those "studio" apartments that's really just a glorified "room" without its own private entrance (thus necessitating her having to walk through the house to leave her apartment)?

If the studio has its own entrance, and there's no connection between the house and the apartment, the only way smoke should be getting in is if it's wafting in on a breeze. In which case, it'd probably be better for her to smoke indoors, right?

There are a lot of details you're leaving out.
posted by Civil_Disobedient at 12:02 PM on December 2, 2007

This is definitely well into consult-a-lawyer territory, but obviously the first thing to do is see if her lease even mentions smoking. If it doesn't, you may be SOL. (Though, I seem to remember some mention of a case where people successfully sued neighbors in an adjacent apartment for seeping smoke, even though the neighbors' apartment was not not-smoking, but I think that's going to be a real last resort.1)

If the lease does specify non-smoking, you're going to have to prove that she's smoking indoors to prove it. That may be difficult. The only thing that comes to mind would be hardwired smoke detectors throughout the house/apartment, in hard-to-reach places (so they can't easily be covered up), perhaps that are wired into an alarm system that calls the Fire Department automatically. The false alarms will probably cost you money (it's $300 per call in my area), but at least you'll be able to get the firefighters to document that the cause of the alarm was cigarette smoke inside the house. That's probably the kind of evidence you'd need to evict.

But definitely do not do anything without working with a lawyer every step of the way. Evictions are a grueling, expensive process -- understand that from the beginning, so you don't get surprised later.

1: I'm pretty sure this is it. It was from MA, but a few similar cases are mentioned.
posted by Kadin2048 at 12:12 PM on December 2, 2007

Response by poster: Her lease specifies non-smoking. The apartment is above the garage and has its own entrance, but there is also a door between her apt and the main house. I want to evict her because I think the smell is going to turn off prospective buyers. SHe knows I'm trying to sell. It's delaware.
posted by Ollie at 12:41 PM on December 2, 2007

Well, if you've got your mind set on evicting her, then you should consult a lawyer. I know nothing of Delaware law, but I suspect it will cost you just like it costs you everywhere when you try to opt out of a contract, and you want the courts to say it's okay.

Even if someone here is able to point you to devices that could catch her red handed, and you were able to successfully install them in her apartment, you might run into a waiver argument -- she could say that, her lease notwithstanding, the prior owner with whom she signed the lease knew about her smoking and let it happen openly and notoriously, thus freeing her from that provision. She might run into a problem testifying about conversations she had with a prior deceased owner (the fascinatingly named Dead Man's Statute), but you see where this is going, right? It's litigation, and it's expensive.

Do you seriously think there's no hope of compromise? It might be your most pleasant, least expensive option, especially if your only issue with her is that she might put off potential buyers.
posted by lassie at 1:48 PM on December 2, 2007

Are there other comparably priced studio rentals in your area?

If so, it is a much, much better use of your time and financial resources to simply pay her to move out. A reasonable offer of two or three months rent to get gone will get her on her way if she knows she will have to move when her lease runs out in a year anyway. And don't be a prat: if the inside of the studio is in okay shape except for the smell, return her security deposit, too.

You may baulk at the notion of this but think about it as an investment to maximise the sale value of your house. It is ultimately cheaper and faster than litigation.
posted by DarlingBri at 2:50 PM on December 2, 2007

The stink is the least of your worries. If she's been smoking in there regularly, the walls, carpet and most other surfaces have absorbed tar. It bleeds.

How soon does the lease expire? With the real estate market expected to still be going down for a year or so, waiting her out OR waiting out the eviction process could cost you a lot on the sales price. If you need her out quickly and definitively, I'd seriously consider paying her off (in consultation with your lawyer) to cancel the lease now. If you can give her enough for 1st, security, and moving expenses it'll be a good incentive for someone who knows that she's going to be out the door with nothing if she waits for it to expire.

This is of course completely unfair to you and an expensive reward for her inconsiderate behavior. But it'll get your house sold.

Tenants with no respect for other people's property suck.
posted by nakedcodemonkey at 2:52 PM on December 2, 2007

Her lease specifies non-smoking. The apartment is above the garage and has its own entrance, but there is also a door between her apt and the main house. I want to evict her because I think the smell is going to turn off prospective buyers. SHe knows I'm trying to sell. It's delaware.

Aaah, OK. So you think the smoke is coming through the connecting door as she smokes inside (violating her lease), and not from wind carrying her outside-smoke indoors?

Then it's just a matter of catching her and she'll be in breach of contract (and thus can be evicted).
posted by Civil_Disobedient at 3:58 PM on December 2, 2007

Then it's just a matter of catching her and she'll be in breach of contract (and thus can be evicted).

Assuming a non-smoking clause is enforceable, it may not be. The history with the previous owner is probably also relevant - if the previous owner tolerated smoking in the house, the simple fact that it goes against the lease may not be enough.

Ollie, you really should be seeking an amicable arrangement. You may have to make a larger concession than providing an outdoor ashtray, but the benefits of having the tenant on your side are substantial.

On the other hand, if this building is being sold as a single family home, the tenant would be well advised to move along ASAP.
posted by Chuckles at 5:05 PM on December 2, 2007

Lawyer up if you plan on bringing up the issue with any seriousness whatsoever. Being on the wrong end of a tenant action group is not a comfortable place to be.

Some lease clauses (non-smoking, sidewalk maintenance, maintenance notifications, etc) are not enforceable, and it varies by state. If you try to evict her, and Delaware is one of the states that treats rented property with the same status as an owned home, you're effed.

Leases are tricky. It doesn't so much matter what the lease says, but what the state rental laws say. In most states, your lease conditions are more of a formality and only apply to exceptions, not restrictions. The easiest way to find out is to get a referral from your local bar association website. For about $25, which is commonly waived, you can have an answer with a simple phone call. Just have your shit together before you call.

Drop it, or get ready for a lawsuit. It may be cheaper to repaint. Then again, depending on DE laws, you may be legally required to repaint the apartment when she leaves anyway.

Next time, get to know your tenant first.
posted by onedarkride at 5:15 AM on December 3, 2007

« Older How to ride a single speed on an indoor trainer   |   Pomegranates are naturally vivid, right? Newer »
This thread is closed to new comments.