How to prove tenants is smoking in unit legally

11 Replies

Hello everyone!

I recently bought a duplex with tenants living in it. On one of the side the tenants was smoking inside and had been for 4 years. When we did there lease we talked to them about how they will not be able to smoke inside the building anymore and put it in the lease.

It has been two months now and at first they were doing a good job about going outs which was easy with the nice weather but now that its getting colder they are coming outside less and less which means one of two things. 

1. They cut back on smoking 

or

2. they are smoking inside. 

What do you guys think I should do? 

I think if they have been smoking in the unit for 4 years the chances of them fully complying with a new "non-smoking" policy are virtually zero. 

You'll either have to deal with it and let them run their course or be prepared to evict them if you are serious about making it stop. It'll be much easier the next time you rent it to start the new tenants off with the no smoking policy.

Your local health department may have information to help you implement a no-smoking policy. At least ours does. There are many factors to consider when transitioning from "smoking allowed" to "smoking prohibited", the biggest one being the human element. 

Smoking is an addiction. Most people will continue to smoke, even if they try to quit. Some will choose to continue to smoke, but changing the habit of "when and where" they smoke will be a challenge. In over 22 years of landlording, we have never met a smoker who didn't eventually smoke indoors once the weather turned bad, in spite of our no-smoking policy.

We impose a $50 fee every time we catch someone smoking on our property (inside or outside) or have sufficient evidence to ferret out a confession. We use a few techniques to determine whether smoking is occurring inside the unit.

1. Do periodic property inspections with proper legal notice.

*  When you enter the unit, do you notice the coverup of incense and air fresheners? Do you smell cigarette smoke, marijuana smoke, other odors? 

*Check the smoke/CO alarms to make sure they are functioning wipe the outside with a disinfectant wipe. 

*Check the HVAC system and vacuum out electric heaters. Change furnace filters. Wipe clean the intake areas.

*Check the functioning of the refrigerator and vacuum the coils and clean the drip pan; also wipe clean the back of the refrigerator. 

*Check the functioning of exhaust fans (range hood, bathroom, etc.) and wipe clean the area around them.  

*Check the function of exterior doors and windows. Clean wipe the casing around doors and windows while looking at the weather stripping.

* Look for burns in the carpet and on places where one might rest a cigarette, such as a counter top or fireplace mantel.

Note: Cigarette smoke will leave a yellow tar residue that can be easily seen in furnace filters and on cleaning wipes. We use Clorox disinfectant cleaning wipes as they clean and collect evidence at the same time! Smoke is carried through HVAC and exhaust systems. Also, smokers often smoke near windows and doors. But the yellow of tar can also be found on smoke/CO detectors, walls, and inside heat ducts. The reason why I wipe the back of the fridge is because it is often overlooked by tenants. If the smoker tenant cleans their place before you arrive, there are specific areas they tend to miss.

2. Stop by the property informally and see what you see, hear and smell. 

For example, at this time of year we give our tenants a gift card to a local store. It's the perfect opportunity to have a quick look at the property. We can walk up to the front door and knock without needing to give any notice. While we are waiting for the door to open, we use our observation skills to notice any violations of our rental terms.   We only stop by properties during the daytime, but we drive by them often. When the door opens, you may get a whiff of the smell of cigarettes or marijuana or other smoked substances. The tenant  may even invite you inside. That's another opportunity to see how tenants take care of the place.

Also, when you are at the property at the request of the tenant for maintenance and repair, or there working on the outside landscaping, it's another opportunity to see what's going on.

3. Post no-smoking signs on the premises to re-enforce your no-smoking policy. This is a good reminder not only for your tenants, but also informs their friends, guests and invitees. Neighbors too might clue you in if they see smoking on the premises. Our no-smoking policy covers the whole premises, not only the inside. Smoking outside is problematic since second hand smoke travels and can adversely affect others.

How much smoke damage is there already? If there is already a lot of damage from four years of smoking and they pay on time, you may want to just keep them since the damage has already been done. Assuming that they are not causing other disturbances.

I think it will be futile to try and curtail indoor smoking. Either just accept that they will smoke inside and plan to spend time and money getting rid of smokers residue if it will exceed the security deposit once they leave. Or wait out the lease and give the required notice that you are not renewing. Then screen your new tenants and only accept non smokers. A tenant may promise to smoke outside but that is not going to happen all of the time.

I agree with @Ryan Murdock . There is no chance that someone who is stuck in their ways is going to completely change their tune about smoking in the unit no matter what they signed in a lease.

I am not sure how things are in Maine, but here in Connecticut it is very hard to evict someone for something other than non-payment of rent. Do you know if it will be difficult to evict someone for doing something that may be against their lease terms but is not against the law at all?

Look into that before going down the eviction route and weigh your options.

If the tenant on the other side complains about the smoking at all, give the smoker a 30 day no cause notice.  If you give it now, you can probably get them out by the end of January.  You would rather keep the non-smoker happy.  However, if it doesn't bother the neighbors, give the 30 day notice in early spring so you don't have a vacancy during the heating season and it'll be easier to find new tenants.  

I just did a turnover for a 4 year tenancy of a chain smoker.  I started the eviction process too late and kept granting continuances at the eviction to give her more time to find a place.  Was probably too nice and now I have a Christmas vacancy and get to pay heat all winter.  Prepare to cover everything in the odorless Kilz in the Green can.  Don't be tempted to go cheap!  Also, prepare to rip out carpets and pads, dropped ceiling tiles if you have them, and do a lot of cleaning, especially around the windows.

Since I've gone non-smoking with all my properties, my turnover costs and tenant drama have gone way down. 

Some good posts here I agree with @Ryan Murdock and like the suggestion of @Amy A. I have a no smoking policy in all new leases, but I also know how hard it is for smokers to quit. 

A tenant that I inherit who smokes I just tell them of the policy and ask them not to smoke inside and if their neighbors complain often enough I will not renew the lease again. In five years I had one complaint of smoking and that was this pass week lol. 

@Jacob R. Crosby I would just let them stay if otherwise they are a great tenant, they have been there for 4 years and to be honest any damage that it will do has been done and it won't matter if they stop now.

When their lease is up I would non renew.

You will need to renovate the place before you get a new tenant, scrub everything down with TSB, remove all carpets, curtains/material etc. and paint with Kilz.

Once you start fresh stick to your no smoking policy.

Hey everyone thank you for the help. At this point the damage is already done to the property and will need a serious cleaning when they move out so I may just keep them as they are good tenants otherwise. Its just disappointing that people say they will not do something and then they do. If they were new tenants I would go through the eviction process but at this point i will continue taking rent and not give back deposit if/when they leave.

Thanks again!

@Jacob R. Crosby , one other thing to think about is insurance. If your insurance in predicated on a non-smoking building, yet you have smokers in there that you know about and don't do anything about there may be an issue if there's a loss from a cigarette caused fire. I've never actually had this issue and am not an insurance person, but I am a bit cynical and wouldn't be surprised if an insurance company refused a claim based on something like this.

Also, I don't know what the legal ramifications of not doing anything to remove said smoker are if there's a fire. Here in Portland there was a horrific fire (six people died) a few years ago. The fire was caused by a cigarette (and made much, much worse by blocked exits, non-working smoke detectors, etc.). I don't know if there would be any ability of another (non-smoking) tenant to come after you if you let someone smoke inside the building despite it being against the lease. Once again, not a lawyer but wouldn't be surprised if this happened.

Good luck!

@Andrew Magoun That is a great point. I will have to look into it more from the legality stand point. I may also have to talk with the tenants again to reiterate that there is no smoking inside. Let them know that I will have to take action due to insurance if necessary. 

Thank you!

@Andrew Magoun Something that I've had to get used to in this business is having people look me straight in the eye and lie to me.  I wasn't raised that way, I can't do it, and it always saddens me when it happens.  On the other hand, my BS detector is now finely tuned!

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