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Surrounded by second hand smoke/marijuana smoke near my apartment unit Can I abandon the unit under constructive eviction?

Hawthorne, CA |

I am long time resident of my apartment unit-over 10 years
I have the unfortunate situation now I am surrounded by smokers
I have a small child with me on weekends
I have to close my windows to avoid the smoke/marijuana smoke
I have faxed a letter to onsite manager about the problem-no results
I feel that I no longer have a healthy environment for me and my child to live

Can I abandon the unit with proper notice and not pay rent under constructive eviction?
I am not being dishonest but are there any steps can i take to get the rental agreement terminated without paying thus i can use my rent for another location- i feel that i have done everything i could to have the right to enjoy my unit under the rental agreement

Attorney Answers 5

  1. If you have been there 10 years you probably can move out any time you want simply by giving 30-days written notice to your landlord. You do not need an excuse.

    Constructive eviction allows you to break a lease. Do you have a lease? It does not allow you to live in a unit rent free. If you do not pay your rent your landlord will serve you with a 3-day notice to pay or quit and follow it up with a UD.

    A UD will make it difficult in the future to obtain adequate housing. If you want to move, start saving money now or obtain a loan to allow you to make the move. That is a far better choice than not paying rent and having a UD on your record.

    I am licensed in California only and my answers on Avvo assume California law. Answers provided by me are for general information only. They are not legal advice. Answers must not be relied upon. Legal advice must be based on the interplay between specific exact facts and the law. This forum does not allow for the discussion of that interplay. My answer to any specific question would likely be different if that interplay were explored during an attorney-client relationship. I provide legal advice during the course of an attorney-client relationship only. The exchange of information through this forum does not establish such a relationship. That relationship is established only by personal and direct consultation with me followed by the execution of a written attorney-client agreement signed by each of us. The communications on this website are not privileged or confidential and I assume no duty to anyone by my participation on Avvo or because I have answered or commented on a question. All legal proceedings involve deadlines and time limiting statutes. So that legal rights are not lost for failure to timely take appropriate action and because I do not provide legal advice in answer to any question, if you are an interested party you should promptly and personally consult with an attorney for legal advice. Also, see Avvo's terms and conditions of use, specifically item 9, incorporated by this reference

  2. Mr. Daymude gives correct pragmatic advice. A 30 days notice is better than abandonning your lease without payment.

    The above is general legal and business analysis. It is not "legal advise" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also terms and conditions item 9, incorporated as if it was reprinted here.

  3. In addition to what has been stated, take a look at this link:


  4. Write the landlord and demand that he resolve the smoking problem under his warranty of habitability.

    I am not your attorney. Contact an attorney for advice immediately.

  5. 1. First determine whether you are month to month or have a balance of months remaining on your written lease.

    2. If the former, give notice and move

    3. If the latter, determine whether you can stick out the remaining months- it is going to take awhile to find a suitable apartment.

    4. In order to terminate a lease for constructive eviction, the unit has to be uninhabitable and the legal standard for that is verey high and set by statute. You can easily research this on line and compare your situation to the standard.

    5. One problem is that the issue is not something the owner is doing or not doing, but something other tenants are doing inside their own apartments and that is very difficult for the owner to control, and may not be grounds for constructive eviction.

    6. Can you even tell exactly who is responsible?

    7. You should keep a journal of when there is a smell, what you have done to counter it; health issues; MD visits, etc

    8. This may be a dicey constructive eviction case.

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