Is use of marijuana from tenants & smoke entering my unit through windows & hallways a breach of right to peaceful enjoyment?

Asked about 2 years ago - Los Angeles, CA

What are my rights in this situation and is this a breach of my right to quiet and peaceful enjoyment?

Attorney answers (2)

  1. Douglas Whitney Weitzman

    Contributor Level 13

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    Lawyer agrees

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    Answered . Although I am not 100% sure, I believe that a landlord has the right to restrict all smoking (of anything) on any deck or outside area. I also believe that there are laws currently under consideration to restrict smoking that could cause second hand smoke.

    If the smoke bothers you, it could be considered a private nuisance, but that would be hard to prove. I would talk to your neighbors about it first and see if you can resolve this informally.

    Since Marijuana smoking is illegal, except if they are using it for medical purposes, you might inquire about that.

    This is general legal advice intended for informational purposes only and does not create and attorney/client... more
  2. Frank Wei-Hong Chen

    Contributor Level 20

    Answered . It might be. There is currently no law in California prohibiting smoking (including smoking marijuana) in private residences.

    You should be aware that California recently passed Senate Bill 332, which expands the availability of smoke-free housing in California by allowing (but not requiring) landlords to prohibit smoking in rental housing units. Effective January 1, 2012, Senate Bill 332 adds Section 1947.5 to the Civil Code. The new law does not force California landlords to prohibit smoking in their buildings, but it gives them the choice to make their properties smoke-free.

    Nevertheless, all California landlords owe duties to their tenants, including the implied warranty of habitability and the implied covenant of quiet enjoyment. Under California law, all leases have the implied covenant of "quiet enjoyment". (California Civil Code, ยง 1927). The landlord (and management company) has the duty to preserve the quiet enjoyment of all tenants. (Davis v. Gomez (1989) 207 Cal.App.3d 1401, 1404.)

    Substantial interference is required to establish a breach of quiet enjoyment. An interference by the landlord "by which the tenant is deprived of the beneficial enjoyment of the premises amounts to a constructive eviction if the tenant so elects and surrenders possession, and the tenant will not be liable for rentals for the portion of the term following his eviction." (Kulawitz v. Pacific Paper Co. (1944) 25 Cal.2d 664, 670.)

    Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is... more

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