# Smoking Tenant - Is there a test?



## maverick17 (Sep 15, 2006)

Is there a test that could determine if a tenant smoked in a a house owned by me?

Obviously, my lease says they cannot smoke, but lets say she moves out and I can easily tell she smoked in the house. She will obviously say she did not, and the house is just dirty when she takes me to court to get her security deposit back.

Is there a test that can determine dirt from nicotine from poor cooking and having smoke in the kitchen, etc?

Thanks!


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## The Coastal Craftsman (Jun 29, 2009)

maverick17 said:


> Is there a test that could determine if a tenant smoked in a a house owned by me?
> 
> Obviously, my lease says they cannot smoke, but lets say she moves out and I can easily tell she smoked in the house. She will obviously say she did not, and the house is just dirty when she takes me to court to get her security deposit back.
> 
> ...


If theres carpets in the house that's your way to find out. Every smoker I have ever known has burn marks in their carpets and car seats. I know mold test company's can test if people have smoked in rooms.


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## duburban (Apr 10, 2008)

maverick17 said:


> Is there a test that could determine if a tenant smoked in a a house owned by me?
> 
> Obviously, my lease says they cannot smoke, but lets say she moves out and I can easily tell she smoked in the house. She will obviously say she did not, and the house is just dirty when she takes me to court to get her security deposit back.
> 
> ...


Dirty cooking? 

that is not smoking. sounds ridiculous. why don' you board up the kitchen?


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## thom (Nov 3, 2006)

Follow the law. Even if you have a no-smoking clause in your contract you may only cover your costs. 

Charge for cleaning. If that includes washing the walls, charge for it. Don't charge for paint, you probably need to paint anyway and the judge will disallow it. If you must primer, charge for the primer. 

You may charge for carpet cleaning right along with all the other cleaning. 

Provide a very detailed list of charges and mail the check less deductions to the tenant within 30 days of the end of the lease (or you are completely out of luck).

If you overcharge, the judge is likely to overreact. If you charge fairly and document it, the judge should allow it if it goes to court.


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## thom (Nov 3, 2006)

duburban said:


> Dirty cooking?


Actually that can be a larger issue than smoking. 

Some people cook with grease all the time. They don't use an exhaust fan or don't keep the grease filters clean. Prior to painting the walls, ceiling, cabinets, appliances, lighting fixtures and counters must all be degreased. Sometimes the carpet is caked with grease. It can be degreased, it takes work.


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## 91782 (Sep 6, 2012)

thom said:


> Follow the law. Even if you have a no-smoking clause in your contract you may only cover your costs.
> 
> Charge for cleaning. If that includes washing the walls, charge for it. Don't charge for paint, you probably need to paint anyway and the judge will disallow it. If you must primer, charge for the primer.
> 
> ...


What Thom said.

You can't use the deposit like a vendetta. That is, you cannot withhold it (or a portion) because you have proof they smoked - regardless of the contract - only for the damage that results.

Have a cleaning company clean it - esp appliances and cabinetry - and inquire if they offer ozone treatment.

Then bill like Thom said.

PS: greasy cooking and candle freaks are just as bad.


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## KAP (Feb 19, 2011)

maverick17 said:


> Is there a test that could determine if a tenant smoked in a a house owned by me?
> 
> Obviously, my lease says they cannot smoke, but lets say she moves out and I can easily tell she smoked in the house. She will obviously say she did not, and the house is just dirty when she takes me to court to get her security deposit back.
> 
> ...


Your other problem is that you would have to be able to prove the existing tenant was smoking, that it wasn't someone visiting, etc...

With regards to paint, you can charge for paint if spackle is involved... just remember pics... 

Your biggest test regarding smoking is your sniffer... if you smell it, so will potential renters, and if it is a condition of your lease for non-smokers, you can charge for all fabric and carpet cleaning to bring it back to rent-able condition... you may not get it, depending on how the judge views it, but it has to be done either way...


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## MAULEMALL (May 16, 2010)

maverick17 said:


> She will obviously say she did not, and the house is just dirty when she takes me to court to get her security deposit back.
> 
> *Is there a test that can determine dirt from nicotine from poor cooking and having smoke in the kitchen, etc?*
> 
> Thanks!


And whats the difference??If you have to clean when she moves because of normal wear and tear ??

What is the actual difference in the cleaning and prepping??

Or are you just looking to scam her on HER security deposit...


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## ohiohomedoctor (Dec 26, 2010)

I could tell you if they smoked in there from the front door. People who smoke in their homes are gross.


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## MAULEMALL (May 16, 2010)

ohiohomedoctor said:


> I could tell you if they smoked in there from the front door. People who smoke in their homes are gross.


People who go out of thier way not to give people what they are owed are heros though??


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## ohiohomedoctor (Dec 26, 2010)

MAULEMALL said:


> People who go out of thier way not to give people what they are owed are heros though??


I dont get it..


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## Red Adobe (Jul 26, 2008)

If the ? is only of smoked in a place or not then its going to be tough in court no matter what. If tenent did no damage and exited within lease terms then do what a Landlord should do.....spruce up and move on

If theres damages like burns or something then get into the deposit.

I have done work in smokers homes and non-smokers and been disgusted in either. For me its CATS Id never alow them nor the box of crap they all have to have and some choose not to use

As for funks smells there are ozone machines and bombs around


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## tedanderson (May 19, 2010)

IMHO if you could prove that the tenant was smoking, the only thing you have on her is breach of contract which would be grounds for eviction. 

But breach of contract does not necessarily equate to forfeiture of the deposit unless there were damages. This would be the case whether you allowed the tenant to smoke or not. 

If they left the house smelling bad enough to choke the Marlboro man, you would have to use a portion of the deposit for the cleaning bill.


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## Chris Johnson (Apr 19, 2007)

My wife's nose - best test there is, she can smell literally a seconds worth of smoke if I light up in the house and walk outside immediately, I can't win


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## Kowboy (May 7, 2009)

Maverick17:

If you don't mind my asking, how long have you been a landlord?

Joe


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## Texas Wax (Jan 16, 2012)

ohiohomedoctor said:


> People who smoke in their homes are gross.


So you refuse to work in smokers homes?

Seriously dude, "maker of posts", that's one post you should have kept to yourself.


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## maverick17 (Sep 15, 2006)

Kowboy said:


> Maverick17:
> 
> If you don't mind my asking, how long have you been a landlord?
> 
> Joe


Depends on the strict definition. I own a commercial property that is leased to a partnership me and my brother own, so if you include that, since 2007.

From the true "Landlord" perspective, 2010. 56 unit apartment complex.
My dad has owned and still owns rental property, and my work at his places actually jaded me in my view of the "sport" of property rental. 



MAULEMALL said:


> And whats the difference??If you have to clean when she moves because of normal wear and tear ??
> 
> What is the actual difference in the cleaning and prepping??
> 
> Or are you just looking to scam her on HER security deposit...



Thanks for the tip.... sounds like somebody had a bad landlord.


While I specifically did not ask for legal advice...


The real issue is figuring out a cost for the court. With others experiences (mainly my dad's) I have set up a lease that is without doubt, in my favor. If you want to rent from me, and don't like the lease, move the FUDGE on to the next house, I don't need your $900 a month.

If I tell a tenant she can't smoke in the house, and she agrees, and she does anyway, she needs to pay for it. If I hire Serv-Pro, the security deposit is long gone before they even hit the driveway apron. If I hire a couple yo-yo's in an ad off craigslist, I may save the tenant some money, but I probably get crap work. 

If I do it myself, the judge doesn't give me anything for my time, only the materials. I have clauses in the lease about broken windows and doors. They have a predetermined set cost to replace. It is not unreasonable, nor is it cheap. It is in black and white in a signed lease.

Judges have almost 100% of the time agreed with this process, and even when they didn't it was not the process that was the problem, it was whether or not the tenant admitted the crime and if not, who the judge believed.

The difference with smoking and a broken window is pretty simple to me, a broken window is broken, there can be an argument of who or when it broke, but it is broke. Smoking is not so cut and dry. The judge is not going to make a field trip out to my house to take a smell test, and even if he did, in order for me to prove my damages, I would need to fix it before I stepped foot in the courtroom to make the field trip moot. 

So, if there is a test, I would appreciate a link or some direction as to how to obtain one, as I would like to put those details in my lease, if there is not, then I will keep thinking of how I want to word my lease.


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## maverick17 (Sep 15, 2006)

Chris Johnson said:


> My wife's nose - best test there is, she can smell literally a seconds worth of smoke if I light up in the house and walk outside immediately, I can't win


Me and your wife were in the same line when God handed out noses, or at least the smelling part of a nose, I doubt you want my nose on your wife....


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## maverick17 (Sep 15, 2006)

Red Adobe said:


> If the ? is only of smoked in a place or not then its going to be tough in court no matter what. If tenent did no damage and exited within lease terms then do what a Landlord should do.....spruce up and move on
> 
> If theres damages like burns or something then get into the deposit.
> 
> ...


No pets. It's in there. 

As for the "tenant did no damage" part if they were smoking, that is untrue.

Ask one of the painters on this board how many coats of paint it takes to stop nicotine from bleeding through. Use buckets of Kilz and see if that helps.

I have not had a smoking problem.... yet. It will come up and in thinking about this I started to wonder if there is a test that can determine nicotine vs dirt vs "dirty cooking" vs anything else you can think of. My dad has had issues in the past. 

Biggest issue with smokers is typically when they want to drop a deuce and figure they mind as well save some time and lite up while on the throne. Just turn the fan on and all is well, so they think. Do that for two years and see how well those bathroom walls respond to a fresh coat of paint.


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## MAULEMALL (May 16, 2010)

maverick17 said:


> Depends on the strict definition. I own a commercial property that is leased to a partnership me and my brother own, so if you include that, since 2007.
> 
> From the true "Landlord" perspective, 2010. 56 unit apartment complex.
> My dad has owned and still owns rental property, and my work at his places actually jaded me in my view of the "sport" of property rental.
> ...


Keep your lack of integrity and your Bad Karma... You have earned it.


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## TNTRenovate (Aug 19, 2010)

It really doesn't matter. If there is work above what your lease states is reasonable wear and tear then you can deduct from the deposit.


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## MAULEMALL (May 16, 2010)

Security Deposits -- Ohio's Landlord-Tenant law establishes a detailed procedure concerning the return of security deposits. The Court of Appeals in Cincinnati has outlined some of the dangers when a landlord does not meet all of the requirements with precision. Nolan v. Sutton, 97 Ohio App. 3d 616 (Ham. Co. 1994). 

In this case, the tenant sued the landlord for retaining her security deposit. The landlord had kept $40 of the $460 security deposit. The landlord sent $420 to the tenant, along with a "transmittal" form showing that $40 had been withheld for "cleaning." After the tenant sued, the trial court ordered the landlord to pay $80 in double damages and $500 in attorney fees to the tenant. The Appeals Court upheld the award. 

Under the Landlord-Tenant law, deductions can be made to a security deposit for (a) noncompliance with a tenant's statutory obligations, and (b) noncompliance with the lease requirements. Any security deposit deduction must be itemized. If the landlord does not comply with the statute's requirements, double the amount wrongfully withheld can be awarded to the tenant, plus reasonable attorney fees. Section 5321.16, Ohio Revised Code. In this case, the Court held that the itemization of "$40-cleaning" was not sufficient to meet the landlord's obligation. (The sufficiency of the itemization is determined as of the time it is sent, and not on the basis of any later clarification.) The reason that this itemization was insufficient was that it did not differentiate between cleaning due to ordinary wear and tear (for which the tenant had no obligation) and something extraordinary.


http://www.tenant.net/Other_Areas/Ohio/landlord.html


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## thom (Nov 3, 2006)

I'm a residential Landlord, been to court many times, will be there again Thursday. Most states have similar Landlord/Tenant rules. The rules are based on equity. 

I can put in my lease that smoking in the house will result in a charge of one months rent, the judge would not support it though. If the carpet is damaged enough to be replaced, the Judge will prorate the carpet over 10 years. 

Cleaning, as long as you document the hours and have pictures that support your work, you will be OK. When homes are bad, I create a web-page with pictures and include a link with the charges. When I go to court I have 8-1/2X11's that match the pictures on the web page. 

If you charge more than the Judge deems fair, there is a good likelihood that the judge will overreact against you. On the other hand, if you hire people to do the cleaning and charge a fair amount per hour the judge will allow it, just provide pictures that show it's needed. 

If the walls are nicotine stained, clean a single swipe in each room, photograph it, then detail the time cleaning ceiling, walls, floors, doors, windows, base, casing, and lighting fixtures by room. 

If you need to replace window coverings, detail both the cost of the blinds and the time it takes to replace them in the charges. 

Along with time, include standard rates. I charge $65/hour for tradesmen type work, $35/hour for cleaning type work. I contract out carpet cleaning and charge what he charges. 

Don't try to punish, that will backfire. Just charge fairly based on the actual damages.


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## maverick17 (Sep 15, 2006)

MAULEMALL said:


> Security Deposits -- Ohio's Landlord-Tenant law establishes a detailed procedure concerning the return of security deposits. The Court of Appeals in Cincinnati has outlined some of the dangers when a landlord does not meet all of the requirements with precision. Nolan v. Sutton, 97 Ohio App. 3d 616 (Ham. Co. 1994).
> 
> In this case, the tenant sued the landlord for retaining her security deposit. The landlord had kept $40 of the $460 security deposit. The landlord sent $420 to the tenant, along with a "transmittal" form showing that $40 had been withheld for "cleaning." After the tenant sued, the trial court ordered the landlord to pay $80 in double damages and $500 in attorney fees to the tenant. The Appeals Court upheld the award.
> 
> ...


once again, thanks for the tip, me and my evil self appreciates it.

Fortunately for me, I have been to housing court more times than you have made snarky comments on a forum thread.

I really don't care about "what the law is," unless of course you will be the judge I will one day stand in front of in court. He/She is the only law I care to abide by.

Once again, I was not here to ask legal opinions. I am asking if there is a test that can produce what I am looking for, and if there is, if you have any information on how I can find out more information about it.


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## MAULEMALL (May 16, 2010)

maverick17 said:


> I am asking if there is a test that can produce what I am looking for, .


Yes there is..:thumbsup:


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## maverick17 (Sep 15, 2006)

thom said:


> Don't try to punish, that will backfire. Just charge fairly based on the actual damages.


I agree. The problem with the local court I have to go to is they have a problem paying ANYTHING if the landlord does the work. If there was a standard $65 or $35 an hour for certain tasks, I am fine with that.

Also, cleaning is difficult to get paid for where I am at, it needs to be bad, which in my opinion, smoking is bad. But if the tenant walks in the house with muddy shoes for a year, the judge does not care and that is normal wear and tear.

As for carpet, I keep the invoices when carpet has been replaced and when it needs to be replaced again. I have documentation of how short or long every repair that has been made in both my units and my dad's on a sortable spreadsheet. It has come in handy many times when figuring out how much use the carpet or other item should have had before it was ruined.

WHAT HAPPENS IN REAL LIFE: I submit photos of the before and after, and the corrected problem. I submit invoices of what was done, and what the costs were. If the issue is something I fixed myself, it was a line item in the lease stating how I would charge for it to be repaired, and if it is not a line item, I didn't do the work, someone else did. Judge listens to my version of the facts, then the tenant cries that they have no money and didn't do any of the damage.

Then one of three things happens: 

1. Judge says I win, 
2. Judge says I win the vast majority of what I claim, 
3. The tenant is smart enough to know they are walking into court a loser, and they take the 2 $100 bills I pull out of my wallet when the judge forces us into a 5 minute negotiation before the start of the actual hearing, assuming I am in the mood to be nice, bad karma be damned!

I don't steal security deposits. I have given back (or authorized to repay when I did the work for dad) plenty of security deposits.

I also don't allow dirtbag tenants to run me over. If I get a judgment for $1,000 over what the security deposit is, you better believe I am coming for it if I think I can get it. And typically I can get it, because I made sure you have a decent job when I let you rent my place.


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## maverick17 (Sep 15, 2006)

MAULEMALL said:


> Yes there is..:thumbsup:


you are just full of useful information aren't you? 

This is at least the third time I have thanked you, yet it doesn't seem like nearly enough.


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## Shellbuilder (May 14, 2006)

I have a dispute starting with a tenant in a higher end home about smoking. Got a call a couple weeks ago to replace thermostat (display out). I noticed a smoke smell and some damages. Lease allows me to immediately charge tenant for damages. Tenant recieved letter from me next day to allow handyman in to work with minimum 230.00 scheduled for Feb 5th and I would rent an ozonator/ionizer for 4 days to rid smell of cigs. Tenant is smoking in the garage, at least 1000 cigarette butts out there. Smell has now migrated in living areas. Heres the lease section, I consider smoking residue to be damage. 

12. CONDITION OF PREMISES: RESIDENT acknowledges that he has examined the premises and that said premises, all furnishings, fixtures, furniture, plumbing, heating, electrical facilities, all items listed on the attached property condition checklist, if any, and/or all other items provided by OWNER are all clean, and in good satisfactory condition except as may be indicated elsewhere in this Agreement. RESIDENT agrees to keep the premises and all items in good order and good condition and to immediately pay for costs to repair and/or replace any portion of the above damaged by RESIDENT, his guests and/or invitees, except as provided by law. At the termination of this Agreement, all of above items in this provision shall be returned to OWNER in clean and good condition except for reasonable wear and tear and the premises shall be free of all personal property and trash not belonging to OWNER. It is agreed that all dirt, holes, tears, burns, and stains of any size or amount in the carpets, drapes, walls, fixtures, and/or any other part of the premises, do not constitute reasonable wear and tear.


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## 5starbuilders (Jan 22, 2011)

I also don't allow dirtbag tenants to run me over. If I get a judgment for $1,000 over what the security deposit is, you better believe I am coming for it if I think I can get it. And typically I can get it, because I made sure you have a decent job when I let you rent my place.


How do you go about getting your money? Collection agency or garnished wages etc.


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## maverick17 (Sep 15, 2006)

5starbuilders said:


> I also don't allow dirtbag tenants to run me over. If I get a judgment for $1,000 over what the security deposit is, you better believe I am coming for it if I think I can get it. And typically I can get it, because I made sure you have a decent job when I let you rent my place.
> 
> 
> How do you go about getting your money? Collection agency or garnished wages etc.


You go back to court and start the process of garnishing wages, typically anyway. Unless they have money in the bank, it is about the only way I know of that has any level of success.

If the dirtbag changes jobs often or is unemployed then it is typically not worth the trouble, unless they pissed me off with something stupid they did. (ie putting rotting meat in a drop ceiling, or placing cheese on a boiler).

My dad owned a company that used the services of a collection law firm on a regular basis for large amounts of money, so they did the landlord side for him even though the amounts were small. They took half the money they collected.

My dad got paid $12.50 every week (judgment was for $25 and firm kept half) for over six years from a tenant who vandalized the place. Poop diapers smeared all over the place, they were the meat in the walls and drop ceiling people, ruined electric panel, plumbing was ruined, etc. Law firm had to chase her a bunch, but he got it back out of them (he didn't work much). If you want to see a 65 year old man about have a heart attack telling a story, mention this couple to my dad and grab a bucket of popcorn.


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## A-1 Interiors (Oct 12, 2011)

when you rent a car they have a white strip looks like a sticker somewhere in the cab of the vehicle if someone smokes that strip turns yellow . that's what i heard any way look into it then you can install them in your units


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## mbryan (Dec 6, 2010)

maverick17 said:


> Is there a test that can determine dirt from nicotine from poor cooking and having smoke in the kitchen, etc?
> 
> Thanks!


Not that I am aware of. Had an issue recently that a tenant was saying her apt was full of smoke from another apt. Talked to my IH and they said any type if tape or air test will just tell you if there is burnt material. Could be from smoking, cooking, candles...

They did say that you could do a test and look for specific markers but wouldn't be very reliable and quite expensive. Don't recall what they call that test. Did say he didn't recommend it unless there was pending lawsuit.

With any tape or air test they can compare to other areas. So the living room has more particulates than the utility room.

Try a chem sponge and do your own test?


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## Jaws (Dec 20, 2010)

SmallTownGuy said:


> What Thom said.
> 
> You can't use the deposit like a vendetta. That is, you cannot withhold it (or a portion) because you have proof they smoked - regardless of the contract - only for the damage that results.
> 
> ...


Thats screwed up. If the contract says no smoking, and they smoke, it doesnt void the deposit? Repainting is a lot more than a deposit. 

Id say bring it on.


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## astor (Dec 19, 2008)

How about replacing smoke alarms with similar to the airplanes and monitor them online? Tampering with them also will notify you.
I am sure security people able to do this.
I believe the detectors in airplane restrooms are very sensitive to any smoke, but forgiving to odors:laughing:


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## Rustbucket (May 22, 2009)

MAULEMALL said:


> Security Deposits -- Ohio's Landlord-Tenant law establishes a detailed procedure concerning the return of security deposits. The Court of Appeals in Cincinnati has outlined some of the dangers when a landlord does not meet all of the requirements with precision. Nolan v. Sutton, 97 Ohio App. 3d 616 (Ham. Co. 1994).
> 
> In this case, the tenant sued the landlord for retaining her security deposit. The landlord had kept $40 of the $460 security deposit. The landlord sent $420 to the tenant, along with a "transmittal" form showing that $40 had been withheld for "cleaning." After the tenant sued, the trial court ordered the landlord to pay $80 in double damages and $500 in attorney fees to the tenant. The Appeals Court upheld the award.
> 
> ...


Since No Smoking was a lease requirement, I guess withholding the security deposit is all good!


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## MAULEMALL (May 16, 2010)

Rustbucket said:


> Since No Smoking was a lease requirement, I guess withholding the security deposit is all good!


And you would be wrong... It is grounds to start eviction but you would be a thief if you took her monies without proof.


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## rselectric1 (Sep 20, 2009)

Rustbucket said:


> Since No Smoking was a lease requirement, I guess withholding the security deposit is all good!


Therein lies the point of the thread. How does he prove it?


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## ohiohomedoctor (Dec 26, 2010)

A signed affidavit of 5-10 unbiased people 1/2 smokers half non smokers should be good enough for court. If you know any cops judges loves affidavits from them.


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## Jaws (Dec 20, 2010)

ohiohomedoctor said:


> A signed affidavit of 5-10 unbiased people 1/2 smokers half non smokers should be good enough for court. If you know any cops judges loves affidavits from them.


:thumbsup:

Think outside the box


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## FremontREO (Sep 30, 2009)

Yes there are labs that will process chem sponges for smoke, what kind of smoke (synthetic, protein). These cost apprx $750-$1000 to have a hygentist complete. We use a lab out of WV for our own " in house only" testing at $52 per sample. 

Either way the cost may be higher than the benefit.

Just call a "yo yo" Company other than Servpro (The least trained and highest charging) restoration company and rent a Vaporshark machine for 2 days, normally $25/day, and the smell will be gone


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## 91782 (Sep 6, 2012)

Jaws said:


> Thats screwed up. If the contract says no smoking, and they smoke, it doesnt void the deposit? Repainting is a lot more than a deposit.
> 
> Id say bring it on.


No John, Landlord/Tenant law is well established. Although there are variables state to state, by and large what Thom said early on (and I added to) are what lower courts are going to use as guidelines.

You can certainly break a lease for a major violation of that lease's terms - like smoking. But good law requires reasonable proof of damages and repairs resulting before shrinking that deposit amount - if challenged in court.

Since the OP has already acknowledged they are not a virgin in this, they are already aware that any "smoke test kit" is irrelevant.

Items like carpet and paint are pro-rated when contested in court anyways. And here in MI, we get compensated for "materials only" on cleanup - not landlord wages - which is why it may be better to hire an outside contractor for cleanup - you can bill the whole amount - and apply it to your costing schedule.

The point is, deposits are not meant for vendettas or retribution, or exacting that pound of flesh.

Qualify the tenant well, pull a 30, 60 or 90 day inspection if your gut tells you to - and terminate ASAP on confirmation of violation (you know - PICTURES).

http://www.legalmatch.com/law-library/article/security-deposit-laws.html


> Every state allows landlords to collect a security deposit when a tenant moves into a property. The purpose of security deposits is to assure that a tenant pays rent on time and keeps the property in good condition. Half of the states place limitations on how much a security deposit can be. In addition, there are usually limitations on how a security deposit can be used by a landlord.


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## 91782 (Sep 6, 2012)

FremontREO said:


> Yes there are labs that will process chem sponges for smoke, what kind of smoke (synthetic, protein). These cost apprx $750-$1000 to have a hygentist complete. We use a lab out of WV for our own " in house only" testing at $52 per sample.
> 
> Either way the cost may be higher than the benefit.
> 
> Just call a "yo yo" Company other than Servpro (The least trained and highest charging) restoration company and rent a Vaporshark machine for 2 days, normally $25/day, and the smell will be gone


EXACTLY. And unless its the judges first day on the bench, that's what he/she is gonna say as well.

This ain't something new in the rental business.


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## Jaws (Dec 20, 2010)

SmallTownGuy said:


> No John, Landlord/Tenant law is well established. Although there are variables state to state, by and large what Thom said early on (and I added to) are what lower courts are going to use as guidelines.
> 
> You can certainly break a lease for a major violation of that lease's terms - like smoking. But good law requires reasonable proof of damages and repairs resulting before shrinking that deposit amount - if challenged in court.
> 
> ...


Guess it depends on the rental. I would bet my attorney against whatever loser a 600 a month renter can get. Thats what it comes down to :thumbsup:


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## maverick17 (Sep 15, 2006)

rselectric1 said:


> Therein lies the point of the thread. How does he prove it?


Exactly, I appreciate it.


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## maverick17 (Sep 15, 2006)

mbryan said:


> Try a chem sponge and do your own test?


That is actually what put the thought in my head. 


If there was a certifiable test for $52, that is exactly what I am looking for. Make it $100, I'd do it in a second.


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## Rustbucket (May 22, 2009)

I guess my point is that the lease agreement says no smoking. A security deposit is made to ensure that no damage is being made beyond reasonable wear and tear. Damage, including odors and stains from smoking, which is disallowed in the contract, is therefore not reasonable "wear and tear." Granted, IF this does go to court, a the landlord needs to provide proof. It doesn't matter if it's the renter, or one of the guests that cause the damage. It's the renters responsibility as soon as they sign the contract. 

I don't know what that proof would be. An affidavit from the cleaning company might be enough? Chemical analysis? I really don't know. I don't think this is about retribution, but how to correct a wrong. Get it cleaned up, and charge that against the security deposit. No more. That's why it's collected. If it costs $300 to get the smell and stains out, that's what you charge against the deposit. The hotel room I'm staying in right now has a sign that says a fee of $1000 if I smoke in here! 

If someone leans against your car in the parking lot and scratches your new paint job with their belt buckle, do you consider it stealing from them if you ask them to pay for the damage? If somebody on your job site borrows your tools, without your consent, and breaks it, do you just let it slide? Damage is done. Somebody has to fix it, and somebody has to pay for it. The no smoking clause was in the contract to avoid this expense. The tenant decided to ignore that clause. 

IF this goes to court, the judge may ask for proof. If you can't provide it, you may have an uphill battle. They tend to be more protective of tenants than property owners.


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## Rustbucket (May 22, 2009)

This kit might work. I believe "Third Hand" smoke refers to he lingering odors.

http://www.homeaircheck.com/our-products


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## thom (Nov 3, 2006)

Jaws said:


> Guess it depends on the rental. I would bet my attorney against whatever loser a 600 a month renter can get. Thats what it comes down to :thumbsup:


You would loose. 

I once went to trial on exactly these types of issues. The ex-tenant didn't show up. I figured it would be a slam-dunk, without a defense I would get everything I asked for. Not So. The judge went by the standard rules, depreciate the carpet, etc. There was no question about the amount of repairs but, I could only collect what he said was fair. 

Cigarette burns on the cultured marble vanity top (non-smoking lease). Since I hadn't replaced the top I couldn't charge. There is no charge allowed for damage that does not rise to "replacement" level. Cigarette burns in the carpet, several, not enough to replace the carpet except one room, only one room is paid, since the other rooms weren't replaced no $ given. 

This is just one example but it is standard fare. 

My lease clearly states that the tenant will pay an additional $1,000 if I evict. The judge will not allow it. I cannot collect on a contract that is outside the norms of what the court will allow. The logic is, the landlord has the advantage because he writes the lease so the courts must take away any benefit of that advantage.

Paint? The tenant won't be charged. However, if additional work is required (priming or multiple coats because the tenant painted the room red) the additional work will be required.


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## cabinetsnj (Jun 10, 2012)

BCConstruction said:


> If theres carpets in the house that's your way to find out. Every smoker I have ever known has burn marks in their carpets and car seats. I know mold test company's can test if people have smoked in rooms.


If shouldn't be too hard to find proof that someone has smoked in your home.


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## TNTRenovate (Aug 19, 2010)

cabinetsnj said:


> If shouldn't be too hard to find proof that someone has smoked in your home.


Not true. Proof is a lot harder to come by than people really think. And even if you proved that someone smoked, you would then have to prove who and when. And that would be darn near impossible.


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## Shellbuilder (May 14, 2006)

I recieved a letter yesterday from a tenanat that wanted to complain about everything except the breach issue I am dealing with, which is smoking and remediatin of that in the house and garage in a non smoking lease. I think they're putting up a "smoke" screen. :laughing::blink:


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## cabinetsnj (Jun 10, 2012)

maverick17 said:


> No pets. It's in there.
> 
> As for the "tenant did no damage" part if they were smoking, that is untrue.
> 
> ...


Exactly, smoking damages a rental property.


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## MAULEMALL (May 16, 2010)

:laughing:


cabinetsnj said:


> Exactly, smoking damages a rental property.


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## Shellbuilder (May 14, 2006)

I think the courts are lacking legislation on this issue. I intend to defend my lease and observations without lab analysis. Hopefully i can remove tenant as opposed to litigation. Because of my demands tenant has given me letter demanding to withold rents for any day an item breaks in this house. Since they rented 7 months ago 4 things have broke down air, heat, fridge and dishwasher. All repaired or replaced within 24 hours, most within 6 hours. I want them to go. House is being abused, 7 months of them looks like 7 years of a normal person.


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## PCI (Jun 8, 2012)

Maverik 17, get him in bed and do the nasty---then see if he lights up in the after glow!


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