Neighbor accused of smoking in smoke-free community

I have a tenant with serious health issues that has made several complaints accusing his neighbor of smoking in the apartment. Let's call the neighbor Mary Jane. I've conducted inspections of Mary Jane's apartment and haven't found any evidence of smoking - no cigarette butts or ashtrays. However, the apartment smells like smoke and Mary Jane emphatically says she doesn't smoke in her apartment and that the smoke odor lingers in her clothes which causes her apartment to smell like cigarettes. I've contacted my attorney and he says that no judge is going to take action because I don't have proof that Mary Jane smokes in her apartment. I contacted an air quality company and they said that they can only detect smoke if someone is actively smoking in the apartment while their equipment is present.

The tenant with the health issues says that I'm not protecting him and I'm allowing Mary Jane to smoke in her home. What more can I do to protect his health and to hold Mary Jane accountable to her lease agreement?

Dear Phylicia Adams:

I would move the tenant with the health requirement to true smoke free building and not renew Mary Janes’ lease.

Sincerely,
Jacqueline L.E. real estate student at Reynolds College in Richmond, Virginia.

One of the biggest challenges I have too in a high rise. I love when neighbors send me photos and videos to help prove where it’s coming from but otherwise, we focus on community reminders and engagement.

As pot becomes legal in more and more states it will become harder to do anything about most police have been told to lessen on the pot enforcement. And honesty pot heads don’t really hurt anyone or damage a lot (don’t know your property situation) as for the main cause , your a non smoking property, maybe pass out flyers to remind residents of that, however if they aren’t smoking inside the unit it doesn’t really go against policy

We are a no smoking community as well. We have a strict $400 fine in place. Pot is still Illegal in our state as well. If they get 2 violations it is a 14 day notice to vacte

It does go against policy. We are a NON SMOKING property. You must not smoke inside your apartment and no smoking on our property common areas. I have a new construction mid rise and am smelling it from a particular unit in the hallway. It’s super embarrassing when touring.

Also you don’t need to allow smoking anywhere at all on your properties. You don’t need to rent to smokers and if you find out people smoke you don’t need to renew their leases.

Better check local fair housing laws before you do this. Not sure what they are for some but this is a great idea if it doesn’t pose a risk!

Smoking isn’t a protected class.

That’s AMAZING! I’m on the sales side of things now and it’s been awhile since I’ve been at a property, so I wasn’t sure. You know those laws can change DAILY

Keep in mind as marijuana becomes medicinally legalized - they can claim it’s their legal right to seek medical assistance for their disability and through the ADA you’re kind of hamstrung - also states are getting rid of income standards.
I should also point out this is happening in ca

You need to spend some more time understanding the fundamentals of your industry.
1.). ADA doesn't address housing at all. The FHA is the body of law that addresses disabilities with housing on a federal level.
2.). What does smoking have to do with medical use of marijuana?? You do understand that there are multiple ways to consume it?? It is going to be hard to justify that smoking is a reasonable accommodation to the property, especially when you consider the health risks to others.
3.). Where exactly in CA are you prohibited from generally using income as a screening tool for a property right now?

Even if a State says it's legal, federal law says it's illegal. On top of that saying it's medically necessary to smoke it, is not a valid reason to request a reasonable accommodation to still smoke on a non smoking property. There are other ways to get the benefits of marijuana. They can eat it. No smoking is no smoking. These remarks were from our attorney in Oregon, don't know about other states. I've issued non compliance notices and had them try the whole "it's medically necessary " and pointed out other ways they can get the same benefits from ingesting it, had them tell me I'll hear from their attorney and then never heard anything from their attorney but do now see them smoke it off property. It is a headache for sure for us all.

Send out a reminder of your zero smoking policy. That includes pot, legal or not. I live on a property and got tenants kicked out for smoking pot. My kids had to walk through the breezeway smelling that crap. That's illegal. They had to either stop or get the cops called. They were lease violated and sent packing. Then bio had to come after make ready to clear that odor

We started doing random inspections, and $250 fines if you're caught smoking. Funny part for us was the guy we caught smoking pot 3 times moved out and then we discovered he'd been chain smoking cigarettes in his unit for 2.5 years, zero complaints about cigarette smoke but constant complaints about the marijuana smoke! So strange!

It’s a lease violation and we remind remind residents constantly

I have residents sign a no smoking addendum. (Including pot) as part of the lease agreement when they move in, and if I get complaints I can enforce lease violations. But I’m in California so people do it all the time

Do fire extinguisher and filter inspections.
Just post on your community page this will take place the week of XX

I’m in a mid rise too and we are smoke free as well. When we get a pot complaint, most times we totally know who it is. I just stick the no smoking addendum that they signed on the door. This usually does the trick.

We've called the police. If they can tell where the smell is coming from, there's probable cause.

Just had a meeting this morning with our state's apartment association. Their stance is #1 if you are a non smoking community, it doesn't matter what they are smoking, that is grounds for a 21/30 and can lead to eviction if they don't stop. Stance #2 is even if your state has authorized recreational use of marijuana, it is still against federal law so if you have a drug and crime free addendum in your lease, you can evict for health and safety violation. Stance #3 is if your state has authorized medicinal use and you are non smoking, then you can still enforce that they must ingest a different way. It is not reasonable to ask to be allowed to smoke on a non smoking property. It is reasonable to ask to use the medicinal thc you have been perscribed in a non smoking way.

Smoking in general is a lease violation. But most properties (in Vegas at least) don’t want to enforce and evict for serial offenders..negatively affecting their occupancy %.

A property I managed was non-smoking but we always had issues, particularly with marijuana. We treated all smokers the same, regardless what product they smoked, in strictly enforcing the policy. At least with pot, you can encourage them to ingest edibles instead, and smokers can get patches. We didn’t even allow vaping.
As far enforcement, I partnered with the American Lung Association and instead of levying “fines” that upset offenders even more, I made them pay donations to the ALA. we had a no-smoking addendum in the lease, so enforcement was an initial warning, with reminder that 2nd violation was a $250 required donation, 3rd violation was $500 and 4th was $1000 and we would pursue eviction. To prove they paid, they had to bring their receipt from the ALA
It really did help keep residents happy. People were less likely to offend again after the 2nd violation when they saw I was serious about enforcing the penalty, but they also weren’t as upset because the money wasn’t coming to the property as income, it was going to a good cause (and was tax deductible). I couldn’t legally enforce fines for smoking violations (CA), so it didn’t affect what could otherwise be viewed as ancillary income.

If you are interested in an easy solution that doesn’t involve legal remedies, and trying to change behaviors... call your local Airemaster franchise. We have a product called “hemp be gone” which neutralizes the smell and is ongoing protection.

Sounds like a great time to do a/c filter changes for preventative maintenance !!

Marijuana remains a controlled substance under federal law. Federal law pre-empts any state law that legalizes medicinal or recreational marijuana use.
Most leases clearly states that marijuana is a controlled substance and that possession, use, etc., on-site is a material lease violation. And, the odor impacts others’ quiet enjoyment and is therefore a lease violation also.

Well cooking it, to make it into a edible would also cause a smell. So what do you have to say about that?