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Can my landlord say I was smoking, evict me, and charge me when I was never smoking? I don't smoke.

Denver, CO |

Let's make this clear: I don't smoke.

My apartment smelled of smoke after I moved in. It took a while for it to surface, but after a month I could tell the place had been smoked in.

My landlord has posted notices saying residents are smoking and it is coming into apartments. Smoke comes into my apartment all the time.

Can my landlord charge me for smoking when I never did? My defense is that smoke comes into my apartment from other units. I even have the letter that they notified residents specifically saying that the smoke gets into other apartments.
Therefore, it is not my fault that smoke has entered my apartment.

How can I fight the charge from my security deposit? Can my landlord really charge me without actual proof that I smoked?

Can a landlord evict without proof?

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Attorney answers 3


Obviously, the landlord can try to evict you, as you are realizing even without proof. You can fight the eviction by responding that you are not smoking and not violating the terms of the rental agreement. The burden of proof is on the landlord to prove that you violated the terms of the lease by a preponderance of the evidence. However, it will definitely be a "he said/he said" situation. As a former judge who presided over evictions, I highly recommend that you get an attorney. There are plenty of excellent attorneys here on Avvo. Use the Find a Lawyer option to find a good attorney to fight this.

The information provided in this answer does not create an attorney-client relationship and is not considered to be legal advice.



If the burden of proof is on the landlord, why is this difficult for me? There would be no such way they could present such proof. It's a messed up system...



Very hard for me to afford a attorney unless I knew I could bill my landlord for all legal fees. If I take him to court on my own (I assume small claims) would I have to provide proof that I didn't smoke in order to get my deposit back? Or would he have to provide proof that I did smoke for him to justify keeping my deposit? In Colorado what are my rights as far as fighting eviction? It's totally wrong that I would get evicted for something I did not do. ***Also, they posted signs admitting that units get smoke inside from other units, this is a flaw in their buildings and duct work if anything.


You can dispute your Landlord's allegations by filing an answer to the eviction lawsuit. It is his burden to prove that you have violated the terms of your lease and that such violation permits him to obtain a judgment for possession of the leased premises. If you are not under a lease (or it has expired or is expiring), there may not be much you can do to prevent him from forcing you to move, but you still can dispute the allegations that you've smoked in your rental unit and demand that no charges be assessed against your security deposit for smoke related damages.

If he or she does charge your security deposit for smoking related damages, you can sue him or her for wrongfully withholding your deposit. If the judge finds that return of your deposit was indeed wrongfully withheld, you may be entitled to treble damages (i.e., 3 times the amount wrongfully withheld).

Proof is required for the landlord to prevail, but he or she only needs to "tip the scales" -- showing that it is more likely than not that you smoked in the unit. The letter you mention could help you "tip the scales" in your favor, as well as, perhaps, testimony from guests you've had over, that have known you for a while, that could testify under oath that you do not smoke and that while they were at your house, they noticed smoke coming into your apartment from other units.

Best of luck.

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If I drag my landlord into court by filing a answer and I dispute the charges and I lose, will I have to pay his court fees?


If your landlord files a forcible detainer (eviction) action, be sure to attend the return date, file an answer, and request a hearing. If you want a jury trial, you need to as for one when you file your answer and pay a jury fee. At the hearing the judge (or the jury if you asked for one) would decide if the landlord has grounds to evict you.