smoking.jpgI’ve been a tenant in a 36-unit apartment building in SF since October 1992. The landlords hired a new property management company about a year ago. Today, I received a letter from the management company stating that they had received an “official complaint” that smoke originating in my unit has continually permeated into surrounding units. The “complaint” demanded that I be more vigilant in containing the smoke. It goes on to point out the “quiet enjoyment” and “house rules” provisions of my original lease, none of which reference smoking explicitly, although “house rules” refers to “odors.”

OK, I’m a smoker, and have been since I moved in. I smoke three to four cigarettes per day, one of which I don’t smoke in my apartment. I try to be considerate by opening windows and using odor eliminating sprays, etc., and the common hallway window is always open. No one has ever complained to me about smoke and there are other smokers in the building.

In the past couple of weeks, I’ve noticed that the vacant apartment in my wing is being shown to prospective tenants so I wonder if this “official complaint” is coming from my neighbors or the prospective tenants/rental agent. Bottom line–I need advice about how to proceed.

What is the first thing I fix on here? You got it–a long-term, rent-controlled tenancy. The second element is a relatively new management company who wants to show their prowess to the owner by maximizing profit. What do you want to bet that they just hired some new hotshot graduate of the Citiapartments School of Apartment Management? This is a classic case of a landlord’s initial attempt to establish a pretext to evict you.

It would be interesting to understand what exactly made the complaint “official.” Was it in writing? Typed on a real, honest-to-goodness letterhead with straight margins and not too many misspellings? My guess is that the rental agent may have been the “official” complainant. I’ve seen this before. I had a case in which the opposing attorney claimed that a rental agent had a right to quiet enjoyment while exhibiting the units in a particular building. The agent didn’t live in the building.

Quiet enjoyment is a term of art in the law, meaning that the term has a very specific legal definition: “The possession of land with the assurance that the possession will not be disturbed by a superior title.” (Black’s Law Dictionary [8th ed. 2004]). One has to have possession (a lease) of land (an apartment) to claim the right to quiet enjoyment. Believe me; you don’t get to sue the inconsiderate clod sitting behind you, talking through the whole movie, for interfering with your quiet enjoyment. Nor is the rental agent entitled to quiet enjoyment by just being in the building.

Are you interfering with another tenant’s quiet enjoyment? No. Smoking in your apartment is still legal. You are not smoking in the common area. You are not creating a nuisance. You are not breaching your lease. Here’s where the other part of the definition of quiet enjoyment comes in. If the landlord (the one with superior title) is concerned that he may be sued by other tenants for interfering with their quiet enjoyment, he should do something about smoke escaping from under the door. He should install weatherstripping.

Given what you have told me, I think you would be wise to continue your practice of eliminating the smoke as best you can. Respond to the management company in writing. Point out that smoking in your apartment is neither a breach of the lease nor is it a nuisance. Tell them about the precautions you take and request that they install weatherstripping under your door.

I am also concerned that other tenants may be complaining without alerting you. As I said last week, tenants have to stick together. I think you should politely ask your neighbors if your smoking bothers them and try to understand how their concerns could be accommodated. For example, a neighbor sharing the hall may need weatherstripping to create another barrier to smoking entering her unit.

Expanding on my thoughts last week, before you blame yourself or another tenant for problems arising from living in close quarters, consider the landlord’s duties. As in this case, the landlord may be able to fix the problem causing the discord. If management refuses to act, it’s clear to me that the landlord just became the problem.

Photo: GM Pipes

the author

Dave Crow is an attorney who specializes in San Francisco landlord tenant law. However, the opinions expressed in these articles are those of the author, do not constitute legal advice, and the information is general in nature. Consult the advice of an attorney for any specific problem. You understand that no attorney-client relationship will exist with Dave Crow or his firm, Crow & Rose unless they have agreed to represent you. You should not respond to this site with any information that you believe is highly confidential.

Please make sure your comment adheres to our comment policy. If it doesn't, it may be deleted. Repeat violations may cause us to revoke your commenting privileges. No one wants that!
  • Wil

    Is the smoke actually permeating outside your unit? (Whether masked by sprays or not?)

    Because if so, perhaps other people don’t want your carcinogens and you should smoke outside. Common courtesy should tell you this, not a letter from your landlord.

    This column reads like one of those late-night ads for personal injury attorneys.

  • Wil

    Is the smoke actually permeating outside your unit? (Whether masked by sprays or not?)

    Because if so, perhaps other people don’t want your carcinogens and you should smoke outside. Common courtesy should tell you this, not a letter from your landlord.

    This column reads like one of those late-night ads for personal injury attorneys.

  • Greg Dewar

    I am no anti smoking fascist BUT the fact is all the sprays in the world will not change the fact that your smoke can and will enter the ventilation system at some point.

    Plus, the City is going gangbusters banning smoking near windows and such. And also, yeah yeah “solidarity” and whatnot, yes, but why the Hell should I put up with neighbors who aren’t cool or reasonable? Most people can be reasoned with but this being SF with the sense of entitlement held by the most obnoxious people, sometimes you gotta bring the full force of The Man to get people to behave properly in an urban environment.

  • Greg Dewar

    I am no anti smoking fascist BUT the fact is all the sprays in the world will not change the fact that your smoke can and will enter the ventilation system at some point.

    Plus, the City is going gangbusters banning smoking near windows and such. And also, yeah yeah “solidarity” and whatnot, yes, but why the Hell should I put up with neighbors who aren’t cool or reasonable? Most people can be reasoned with but this being SF with the sense of entitlement held by the most obnoxious people, sometimes you gotta bring the full force of The Man to get people to behave properly in an urban environment.

  • dantsea

    It’s been my experience that when you tell a smoker “outside” they interpret it as “stick my head out the kitchen window and light up.” No, by “outside” I mean out front and on the sidewalk and away from the neighbors because they will continue to complain and hound until he get the message or give up the habit. Smokers, look, I understand more than you may think but you just have no clue how horrid a stench your addiction is.

    Of course the cigarettes I smoke on the sidewalk in front of the bar on Friday nightts when I’m drunk (It’s not an addiction if you only do it when you drink!) smell like sweet, sweet perfume.

    (Yes, SFAppeal, I ate the Twitter bait.)

  • dantsea

    It’s been my experience that when you tell a smoker “outside” they interpret it as “stick my head out the kitchen window and light up.” No, by “outside” I mean out front and on the sidewalk and away from the neighbors because they will continue to complain and hound until he get the message or give up the habit. Smokers, look, I understand more than you may think but you just have no clue how horrid a stench your addiction is.

    Of course the cigarettes I smoke on the sidewalk in front of the bar on Friday nightts when I’m drunk (It’s not an addiction if you only do it when you drink!) smell like sweet, sweet perfume.

    (Yes, SFAppeal, I ate the Twitter bait.)

  • generic

    Take all these arguments against the propriety of smoking in your own home and switch them with marijuana. They’re absurd. If it’s not illegal to smoke in your own home, it’s not rude.

    Smokers smoke outside my window. I close the window. It’s the price of living in the city. There’s plenty of tobacco-free air in Walnut Creek. If smoke is seeping through the floorboards, my complaint is to the landlord, not the smoker, because the smoker isn’t doing anything wrong. I don’t smoke marijuana and I don’t want a contact high. But if my downstairs neighbor wants to hotbox some sweet Hawaiian Kush, I’m not going to pretend the landlord can’t fix the issue with some weatherstripping and a caulking gun.

    If another person’s apartment-smoke enters your ventilation, then it’s not ventilated properly, and that’s not the responsibility of the smoker.

  • generic

    Take all these arguments against the propriety of smoking in your own home and switch them with marijuana. They’re absurd. If it’s not illegal to smoke in your own home, it’s not rude.

    Smokers smoke outside my window. I close the window. It’s the price of living in the city. There’s plenty of tobacco-free air in Walnut Creek. If smoke is seeping through the floorboards, my complaint is to the landlord, not the smoker, because the smoker isn’t doing anything wrong. I don’t smoke marijuana and I don’t want a contact high. But if my downstairs neighbor wants to hotbox some sweet Hawaiian Kush, I’m not going to pretend the landlord can’t fix the issue with some weatherstripping and a caulking gun.

    If another person’s apartment-smoke enters your ventilation, then it’s not ventilated properly, and that’s not the responsibility of the smoker.

  • Wil

    Note I advocated smoking outside *if* the smoke is going into neighbors’ apartments, as was alleged by the landlord.

    If someone can smoke inside without the smell and carcinogens leaving their own unit, more power to ’em. Same deal if they want to start a feces collection in their kitchen. In neither case, though, do I think their neighbors should be forced to endure the smell and disease. And in both cases I would expect the tenant to bear the cost of cleaning up when they move out. (Also, please do not invite me over to visit.)

  • Wil

    Note I advocated smoking outside *if* the smoke is going into neighbors’ apartments, as was alleged by the landlord.

    If someone can smoke inside without the smell and carcinogens leaving their own unit, more power to ’em. Same deal if they want to start a feces collection in their kitchen. In neither case, though, do I think their neighbors should be forced to endure the smell and disease. And in both cases I would expect the tenant to bear the cost of cleaning up when they move out. (Also, please do not invite me over to visit.)

  • This is ludicrous. I am a landlord and I will evict anybody who smokes in my building and it has nothing to do with rent control. Smoking ruins an apartment. It takes years to remove the smoke smell from an apartment. I have had apartments ruined because of cigaret smoke. You can steam clean, bleach, paint, and it still wreaks.

    It ruins life for others who live near you. As a landlord, I cannot allow people’s lives to be ruined. This is no exaggeration. If you live next door to a smoker, you know what I’m saying is true.

    I have a strict no-smoking clause in my leases, so the tenants know going in. So if they smoke once they are there, they are gone after three violations. So don’t give us the BS about trying to get rid of tenants because we want to raise rent. Smoking RUINS a building, and it must be stopped. Evicting a tenant is very expensive and is rarely worth it for a few hundred extra bucks per month in the future. It also ruins your ability to earn rent from others.

    Woud you rent a unit if you smelled smoke during a showing? I wouldn’t. Gross!

    I just want to add that I am extremely marijuana positive and think it’s great—but not in my building either. It’s the one area where SF gives a little leeway to landlords. And thank goodness it does.

  • This is ludicrous. I am a landlord and I will evict anybody who smokes in my building and it has nothing to do with rent control. Smoking ruins an apartment. It takes years to remove the smoke smell from an apartment. I have had apartments ruined because of cigaret smoke. You can steam clean, bleach, paint, and it still wreaks.

    It ruins life for others who live near you. As a landlord, I cannot allow people’s lives to be ruined. This is no exaggeration. If you live next door to a smoker, you know what I’m saying is true.

    I have a strict no-smoking clause in my leases, so the tenants know going in. So if they smoke once they are there, they are gone after three violations. So don’t give us the BS about trying to get rid of tenants because we want to raise rent. Smoking RUINS a building, and it must be stopped. Evicting a tenant is very expensive and is rarely worth it for a few hundred extra bucks per month in the future. It also ruins your ability to earn rent from others.

    Woud you rent a unit if you smelled smoke during a showing? I wouldn’t. Gross!

    I just want to add that I am extremely marijuana positive and think it’s great—but not in my building either. It’s the one area where SF gives a little leeway to landlords. And thank goodness it does.

  • Also, it’s bad legal advice to say smoking in your apartment is legal. It is if the landlord doesn’t prohibit it. If the landlord has a no smoking building–which a landlord has the right to do, as long as it’s equal among all tenants, then you do not have that right.

  • Also, it’s bad legal advice to say smoking in your apartment is legal. It is if the landlord doesn’t prohibit it. If the landlord has a no smoking building–which a landlord has the right to do, as long as it’s equal among all tenants, then you do not have that right.