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I moved to an apartment in Irvine CA I am a smoker. They…

Customer Question
I moved to an...

I moved to an apartment in Irvine CA I am a smoker. They never said smoking is not allowed. The neighbors are complaining I smoke outside and that does not work. One cigarette is to much for the neighbors. The complex said they can kick me out for to much smoking. I signed a lease can I get out of my lease or can I ask them to move me to a better spot.

Lawyer's Assistant: Have you talked to a CA lawyer about this?

No

Lawyer's Assistant: What steps have you taken so far?

Smoking outside like they said

Submitted: 4 months ago.Category: Landlord-Tenant
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Answered in 1 minute by:
3/21/2018
Lawyer: Legal Eagle, Lawyer replied 4 months ago
Legal Eagle
Legal Eagle, Lawyer
Category: Landlord-Tenant
Satisfied Customers: 13,441
Experience: Licensed to practice before state and federal court
Verified

Hello! I am a licensed attorney, admitted to practice in state and federal court. I have a nearly 100% satisfaction rating (click here for more info) so all that means is that you can count on me to help today. Because I want to provide you with the most accurate answer possible, do you mind if I take a moment to review your question?

Please keep in mind that our conversation does not include an attorney-client relationship and this is for general information purposes only.

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Customer reply replied 4 months ago
I'll wait
Customer reply replied 4 months ago
no I'll wait
Lawyer: Legal Eagle, Lawyer replied 4 months ago

Great, thank you! The system may automatically ask you for a phone call; however, it’s not required that you take it. Bear with me a moment while I review…

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Lawyer: Legal Eagle, Lawyer replied 4 months ago

Are you aware whether your lease says smoking is not allowed?

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Customer reply replied 4 months ago
Smoking is allowed. but now they say I smoke to much
Lawyer: Legal Eagle, Lawyer replied 4 months ago

Interesting. So, if smoking is allowed, then there really isn't much that the complex can do to you. It is possible that your neighbors could sue for what's called a private nuisance (a substantial interference with their use and enjoyment of their land) but that may not be something they would want to realistically explore.

The apartment complex isn't legally obligated to move you to a different place though. So, in the end, its a bit of a catch-22. They can't kick you out, but they're not required to move you either. The best thing that you could do is advise them that smoking is allowed and suggest they move the other people.

Did you have any other questions for me today that I could help you with?

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Customer reply replied 4 months ago
They gave me a 3 day quit notice
Lawyer: Legal Eagle, Lawyer replied 4 months ago

This appears that this eviction may be unlawful. Generally, a landlord must follow procedural requirements when issuing an eviction notice. This means a tenant must receive written notice of the eviction before it is effective. In addition, a landlord’s eviction is unlawful generally if they violated the implied warranty of habitability; the implied warranty of quiet enjoyment; if the landlord has locked the tenant out; if the landlord has failed to uphold promises made in the agreement; or if the tenant has cured a problem such as past due rent. Plus, landlords cannot discriminate on the basis of race, gender, age, disability, sexual orientation, or religious affiliation either under the Fair Housing Act. In your case, if smoking is allowed, then they do not have the authority to have you removed from the property.

The main thing to remember is that there exist various reason why a landlord’s eviction notice may not be effective. Because landlords are people, they are sometimes not thinking their way through the situation and that gives you an opportunity to help them understand their legal position. What I recommend is sending them a letter detailing the reasons why the eviction notice is unlawful. There’s a site that I’ve used in the past where you can find a good template for a letter that puts the landlord on notice that their eviction notice is unlawful (click here). It only costs $10 and it is way cheaper than litigation

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Customer reply replied 4 months ago
No Thank you
Lawyer: Legal Eagle, Lawyer replied 4 months ago

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Customer reply replied 4 months ago
ok Thank you
Lawyer: Legal Eagle, Lawyer replied 4 months ago

You bet. Thanks!

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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

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