Where There’s Smoke, There’s Fire: 2nd Hand Smoke Disturbing The Neighbors

I recently got a call from a client of mine, who owns a custom built home in Lakeside,CA. He has an “in-law” set up and although the house is a SFR, there is a permitted 2nd apt. The apt is rented to a man and his minor daughter. The main house (which is partially upstairs and next door to this unit) is rented to a woman and her toddler son. The problem that has arisen is this: The downstairs tenant insists on smoking cigarettes inside his home, and the smoke is wafting upstairs. The upstairs tenant has bad allergies and her son has been coughing. The laws in California state that it is not illegal to smoke within your unit. It is therefore not within the law for the owner to evict the smoking tenant. All appeals to this man have been ignored, even pleading for the health of the child. His lease is not up until December.

The smell of smoke in the upstairs unit is such that when the present tenant leaves, no one will want to rent it. And even if they did not smell smoke at the time of rental, I  would have to disclose the reason for the tenant leaving.

Although I understand civil liberties, it seems unfair to me that my client has to be the loser in this situation. He could probably evict the tenant on “nuisance” grounds. And I don’t think the “non-smoking” clause is a legal breach of the lease in CA. Eviction is really not the route he wants to go but does he have a choice?

Does anyone have any input regarding legislation or experience on this subject?

 

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