Dave’s here to answer your questions every Wednesday, so send them to him at tenant@sfappeal.com, here’s what to make sure to include in your letter.

tenant_marijuana_copier.jpgMy husband, two kids (17yrs and 4 1/2yrs old) and I recently moved in to the in-law unit of a single unit house in the Inner Richmond. It’s got a full kitchen, two bedrooms, a tiny bathroom and a living room.

My husband and I both smoke marijuana, both have “cards,” and both have the proper paperwork to prove it. (We do not cultivate in our home since we have children. All we do is smoke and occasionally have an edible.)

According to my landlord, she said that the odor came through the ventilation room and that her and her sister in law did not like the smell and that apparently one the next door neighbors had supposedly complained to her about it as well. She said that her sister and her sister’s children (who are over the age of 18) couldn’t stand it, and that she and her 10yr old daughter had some allergies from it as well.

This was after I explained the situation and I also proceeded to show her my husband’s paperwork proving the legality of it all.

It was like she was trying to come with an excuse to justify what she was saying. When I asked if we could smoke out in the backyard, she said no because the neighbors might get mad and complain. She said that we would have to smoke in the street or in our car which was also parked out on the street as well. Since my conversation with her, nothing has been said about it at all.

This month, she declined our rent and said that she doesn’t think that she can rent to us because her family said that they can’t stand the smell and that they have received numerous complaints about it and that hopefully we can find another place by the end of the month and be out by then and that she would give us our security deposit back.

I know that the first thing I should do is refer to my lease or rental agreement and see if there are any stipulations on smoking. But we don’t have a rental agreement: when my husband and I decided to rent the place, he went to see the landlord (who isn’t the actual landlord, she says that it’s her in-law’s house and they live in China) and my husband proceeded to give her 2800 dollars and basically according to him, he signed a regular piece of paper that had the house’s address preprinted on it that said that he was renting the downstairs unit with the current date on it and that he had given her 2800 dollars as first month and security deposit.

He said that when he asked for a copy of this, she said that she didn’t have a copy machine and she had promised him a copy the very next day. She never gave him one. He had called her a few times and had failed in his attempts to get a copy of that paper or a copy of a receipt or rental agreement.

Can she do this to us? Can she deny our rent like that? Can she give us a trial run like that and then if she doesn’t like us kick us out like this?

I would greatly appreciate any type of advice since this had become an incredibly stressful situation for my entire family now.

The landlord cannot refuse to accept your rent unless your tenancy has been terminated by a legal notice. It is a violation of the Tenant Harassment section of the Rent Ordinance to refuse to accept or acknowledge receipt of a tenant’s lawful rent payment. (Rent Ordinance §37.10B(a)(11).)

What’s with the “no copy machine” excuse to refuse to provide a receipt for rent? I talk to a lot of tenants and this one’s been coming up lately. In March another reader complained about this practice. I have also had a couple of phone conversations with tenants who reported the same thing.

Sometimes I think there’s a listserv or a secret monthly meeting in which landlords discuss new, nefarious ways to screw their tenants. Frankly, this is not that new. This excuse is a recycle, like bell bottoms.

If you are worried that your landlord will try to claim that you are not tenants and she is entitled to summarily kick you out, don’t. The landlord may try to argue this somewhere down the line, but her argument will fail.

In San Francisco a tenancy is presumed after a tenant has occupied the unit for 32 days. If you and your family have been there longer than that, you are tenants. It also looks like the landlord accepted a security deposit that was more or less equal to another month’s rent. How is she going to explain that?

It also would be a violation of the Rent Ordinance for the landlord to rent the in-law as a temporary/vacation rental.

“Trial runs” are not permissible under the Rent Ordinance.

There is a bigger issue here. That is: Are you creating a nuisance or interfering with the quiet enjoyment of the landlord by smoking pot in your unit?

It looks like you do not have any prohibitions against smoking in your lease because it is an oral lease with no covenants (promises, terms) about anything. The duty to pay rent is implied. The landlord cannot evict you for breach of the lease.

These days, pot is very stinky! If the smoke is truly bothering the landlord and her family, other than just vague apprehension about getting busted, the landlord can make a persuasive argument that your smoking substantially interferes with the her quiet enjoyment.

You can be evicted for that pursuant to Rent Ordinance §37.9(a)(2). Of course, the key word is substantial.

Is marijuana possession and use legal in California? Well, yes, if you have a physician’s recommendation, and no, because marijuana is illegal under federal law. I discussed this in “Tenant Troubles: Does My Landlord Get To Ask About My Pot Plants?”

If I was the landlord’s lawyer, I would advise her not to get into the marijuana legality issue and, instead, focus on the fact that the smoke is substantially interfering with her and her family’s life.

You should also explore the possibility that you are living in an illegal unit. Remember, however, that you and your family are not entitled to any relocation benefits because you have not lived in the unit more than one year.

My initial take on this is that it’s a battle not worth fighting, but you need to take all your documents to the San Francisco Tenants Union to discuss specific strategy to deal with your case.

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.

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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.

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  • whylime

    A great way around this whole mess would be switch to a vaporizer. Smoking isn’t the healthiest choice anyhow.

  • whylime

    A great way around this whole mess would be switch to a vaporizer. Smoking isn’t the healthiest choice anyhow.

  • Samuel

    Jesus Christ, what is the matter with these people. You DO NOT SMOKE POT AROUND YOUR 4 1/2 YR OLD!!!!! Listen up, if the people living upstairs could smell your pot, YOUR OWN CHILD COULD TOO!!!! What kind of parents do that?!!! I don’t care if you have papers, YOU DON’T DO DRUGS IN FRONT OF A CHILD!!!!! If I’m the landlord I’d call child services. Heck, I’m a bystander and I’d call child services.

    Christ man, forget the landlord, think about your own kid!! If you want to do drugs, GET OUT OF THE HOUSE!! What’s the big deal about stepping outside to smoke your joint?!!

  • Samuel

    Jesus Christ, what is the matter with these people. You DO NOT SMOKE POT AROUND YOUR 4 1/2 YR OLD!!!!! Listen up, if the people living upstairs could smell your pot, YOUR OWN CHILD COULD TOO!!!! What kind of parents do that?!!! I don’t care if you have papers, YOU DON’T DO DRUGS IN FRONT OF A CHILD!!!!! If I’m the landlord I’d call child services. Heck, I’m a bystander and I’d call child services.

    Christ man, forget the landlord, think about your own kid!! If you want to do drugs, GET OUT OF THE HOUSE!! What’s the big deal about stepping outside to smoke your joint?!!

  • Erik

    Secondhand smoke helps kids grow up big and strong.

  • Erik

    Secondhand smoke helps kids grow up big and strong.

  • bien

    i have a question guys. I live in a small apartment with my 2 young kids in San Francisco. The guys renting downstairs smokes marijuana almost every night with his friends. I’m not sure if the guy downstairs have any medical card to be smoking weeds every night. It’s bothering us because it smells so bad. The smoke is coming from all the vents and it’s making us feel awful. Is it legal for him to be smoking with his friends every night? can we do something to stop it? it seems like theres always a weed party every night. I just don’t want my children to be breathing marijuana every night because it might cause some medical problems in the future. please advice?

    thanks,
    Bien

  • bien

    i have a question guys. I live in a small apartment with my 2 young kids in San Francisco. The guys renting downstairs smokes marijuana almost every night with his friends. I’m not sure if the guy downstairs have any medical card to be smoking weeds every night. It’s bothering us because it smells so bad. The smoke is coming from all the vents and it’s making us feel awful. Is it legal for him to be smoking with his friends every night? can we do something to stop it? it seems like theres always a weed party every night. I just don’t want my children to be breathing marijuana every night because it might cause some medical problems in the future. please advice?

    thanks,
    Bien

  • trish

    Loss of reasonable enjoyment is grounds to apply for eviction.
    If you smoke pot, have the decency to step outside and away from the building and smoke it. What is so hard about this? You will be respectful to your neighbours and they will appreciate it.

    • Daniel O’Neil

      Smoking inside so that others outside in the community air aren’t subjected to it. Inside is a courtesy. Say don’t smoke here, then say don’t smoke there, might as well say don’t smoke period. Get a vaporizer.

  • trish

    Loss of reasonable enjoyment is grounds to apply for eviction.
    If you smoke pot, have the decency to step outside and away from the building and smoke it. What is so hard about this? You will be respectful to your neighbours and they will appreciate it.

  • MystiKasT

    At least you arent black, nothing worse than a negro in a community