I live in a 20 unit apartment complex and there are two tenants who are chain smokers. Their smoke comes directly through my windows and that smell is making me sick. Most of the time I can't open my windows. Is there a law in that could help me with this problem. If management is unable to do anything because they are not newer tenants, can I sue these people? I heard there is a law for new tenants - they can't smoke in their apartments. What about the ones who smoke in the common areas.
Nope. There is currently no law in California prohibiting smoking in private residences or apartment complexes.
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, § 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 general in nature and is not intended, nor should be construed, as legal advice for a particular case. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult with your own attorney.
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