How To Prove Tenant Smoked

Question

Hello BP!

I own/manage real estate in San Diego, California.  I have a condo where my lease agreement clearly states no smoking.  I went into the unit twice in the past couple weeks for showings and both times it had a strong odor of cigarettes.  Knowing the tenant smokes, I asked if he smoked in-unit and he denied it.  I confronted him the second time and he says he is burning incense.  Needless to say, incense does not smell like cigarettes.

Is there a way (legally) to prove he is smoking in-unit (other than logging the offenses)?  I am going to have to pay for remediation in a month when he moves out and I'm concerned he will continue to deny in-unit smoking and fight me on security deposit deductions.

I found a kit online that tests for nicotine residue.  Will this hold up if I need it?  Appreciate any insight you guys have.

Kevin Fox · Answer

Hey @John C.

Two questions:

Have you given the occupants a written warning to stop smoking in the unit at any point during their tenancy?

What is the exact verbiage of the no smoking clause within your lease?

As is true with any tenant/landlord disputes, the court's ruling is likely to be rather subjective.  There is no one particular piece of evidence that I'm aware of (outside of perhaps a timestamped/geo-tagged video showing the tenant smoking in the unit lol)  that would guarantee you'll successfully collect in the event you do go to court.

Like others have mentioned, burn holes in the carpet and remnants of ash on countertops/floors are definitely something you'll want to take note of and document.

Another decent indication of whether a tenant has been smoking will be the air conditioning filter.  If they have  and the filter has gone unchanged, you should see quite a bit more sedimentation stuck in the filter than usual as well as notice the scent.

Just be sure to document any evidence you find as thoroughly as possible  and consult with a real estate attorney before doing anything rash.

Please feel free to reach out if you'd like to chat in greater detail.

Account Closed · Answer

In case you end up in court, try to get the tenant to at least admit to burning incense in writing - even if it's a text.  Incense includes smoke.  Smoke does damage.  And it will look suspicious to a judge, if they admit to smoke from incense, but supposedly not from nicotine or pot.  Either way, smoke is smoke and does damage and causes odors that must be removed.

But, really, assuming the property is in CA, it's all about what you can deduct from the deposit.  So, what can you deduct from the deposit that amounts to damage related to smoke?

You will need receipts.  So, rent a machine that removes odors - forget what it's called - but you can rent machines that do this - ozone machines?  Something like that.

There will probably also be issues related to cleaning walls of nicotine.  So, take pictures of nicotine stained walls and/or get receipts of a cleaning service for cleaning walls.

You'll need to clean the walls before you can paint, or the nicotine will seep through the new paint - ask me how I know this...

Get receipts for carpet cleaning, and painting.  You can charge for your own labor in CA, as long as it's reasonable - but you're still best off if you can provide some receipts or photos of the damage and maybe even of you doing the work.

Then, be sure you do everything by the book.  If it's in CA, you need to give them the proper notice of an "initial" inspection, offering them the option of an initial inspection or a waiver form.  The notice must be in writing and contain legal language about their rights.

If they say they want an inspection, it can't be done earlier than 14 days before move-out, and you must give them a written list of everything they need to do to get their full deposit back.

So, if you can get them to admit in at least a text that they have been burning incense - yay!  In your list of things they must do, you will include everything I mentioned above - clean the walls, paint the walls (give them the brand and color of the paint you use), steam clean carpets, etc., etc.

If you do everything right, according to the law, and they don't do the above, you can deduct all of those costs from their deposit, and you'll win in court.

This book is cheap and invaluable. It was my bible:

http://store.nolo.com/products/the-california-land...

Matt K. · Answer

burns in the carpet, ash on the stove...

JD Martin · Answer

It probably will/would if you painted prior to this tenant moving in; otherwise, they will just claim it was the previous tenant.

Keep in mind that the strong odor could just be on his stuff - his clothes, for example. Cigarette smoke clings to everything, and even if he smokes outside I guarantee his jacket and wallet stink like it.

John E Ceisel · Answer

I sent text message warnings regarding both instances citing the lease agreement.  I do not have carpet, but I agree it is best to wait until they move out and see if it lingers at the same high level of odor.  Do you know if the those test kits are enforceable should there be a conflict?  Below is the language in my lease agreement with them:

"(Checked) NO SMOKING: No smoking of any substance is allowed on the Premises or common areas. If smoking does occur on the Premises

or common areas, (i) Tenant is responsible for all damage caused by the smoking including, but not limited to stains, burns, odors and removal of

debris; (ii) Tenant is in breach of this Agreement; (iii) Tenant, guests, and all others may be required to leave the Premises; and (iv) Tenant

acknowledges that in order to remove odor caused by smoking, Landlord may need to replace carpet and drapes and paint the entire premises

regardless of when these items were last cleaned, replaced, or repainted. Such actions and other necessary steps will impact the return of any

security deposit. The Premises or common areas may be subject to a local non-smoking ordinance."