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Lucy, Esq.
Lucy, Esq., Attorney
Category: Landlord-Tenant
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Experience:  Attorney
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My landlord is claiming a smoke smell in the rental unit

Customer Question

My landlord is claiming a smoke smell in the rental unit initial move-out inspection.
How is smell quantifiable?
Who says my deep cleaning efforts will help if I can't smell any smoke myself?
What are my options?
This seems like a bogus claim he is making to force me through the motions and having to go to court to eventually get my security deposit back.
Submitted: 10 months ago.
Category: Landlord-Tenant
Expert:  Lucy, Esq. replied 10 months ago.

Hi,

I'm Lucy, and I'd be happy to answer your questions today. I'm sorry to hear about your situation.

Honestly, the best way for you to verify the smell may be to bring in a friend who's a non-smoker. They'll be more sensitive to it than you are. Smell is tough to prove in court unless you have a furnished apartment where she can bring in something like sofa cushions. However, the landlord can bring in a small portion of the rug, if it needs to be replaced due to the smell, and the judge can smell it. The landlord can testify as to the smell, have third parties who've visited the property testify to the smell, and she can bring in cleaning bills that say cleaning was done to remove an order.

At the end of the day, she just needs to prove that, more likely than not, you caused a smell in the apartment that needed to be removed. If you admit to smoking in the property and to not having a deep cleaning done before you left, that's actually going to help her case. So it would help if you had someone else who could testify that the apartment doesn't smell.

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Customer: replied 10 months ago.
The carpet is going to be deep cleaned because I do have a pet. I am afraid the landlord will say the smoke smell is still there. I am a nonsmoker myself and cannot smell it. Besides having witnesses that cannot smell the odor either, what will help my case? From what I've read I can be charged for duct cleaning, painting, carpet replacement, etc. on such a claim with no real proof. This puts me in small claims regardless of how deeply I clean.
Expert:  Lucy, Esq. replied 10 months ago.

Providing receipts from the deep cleaning may help. That's really all you can do, other that provide witnesses. You can't record a smell like you can dirt or a sound, so the judge will have to use best judgment to determine who is telling the truth. There is unfortunately no way to stop the landlord from taking the deductions in the first place.

A landlord can NEVER charge a tenant for full painting and carpet cleaning costs. They have to pro-rate based on how long you were living in the apartment. Paint tends to have a life of about 3 years, carpet usually 5 years. And she has the burden of proving that duct cleaning was necessary. As the tenant, you don't have to prove that it was UN-necessary.

What state are you in? If you happen to be in one of the states that allows a tenant to sue for MORE than the deposit when the landlord takes illegal deductions, telling her that could help you. (Of course, not telling her could help you.)

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