Legal Question in Civil Litigation in Florida
Our company is currently involved in a lawsuit ( we are being sued by the tenant) regarding a tenant�s security deposit being withheld due to third hand smoke damage in their apartment. At this point, the damages have exceeded their security on deposit and we are seeking additional damages since we have been unable to re-let said apartment due to the odors contained within. We have had to hire professional companies to give us estimates for restorative work in this apartment since the smoke odor has penetrated the wood flooring, walls, ceiling, a/c�s, etc. The tenant in this case lost her job and as a result remained in her apartment on a daily basis for a two year period while smoking excessively and failing to ventilate the apartment by opening any windows or doors. Upon re-taking possession of her unit, we were immediately aware of the smoke odor but truly thought we could paint and clean our way back to a clean smelling apartment. To say the least, we were wrong. We have tried desperately to re-let this apartment and have even lowered our rental rate in hopes of securing a new tenant. However, every prospective tenant complains about the odor and ends up walking away.
Our company is expected to appear in court on November 30, 2009 for a status conference and I would like to bring with me any and all information I can find regarding third hand smoke. Do you know where I can find case law regarding this online? Is there any information you can provide me with that will be helpful for me when speaking with the judge?
I appreciate your time in advance.
5 Answers from Attorneys
Unless your lease had a no smoking clause I doubt you will succeed.
What is third hand smoke? I smoke, and I am aware of second hand smoke and know to keep it to myself. What is the world is third hand smoke, where did it come from and to whose lungs did it go into?
You don't have a specific smoke issue but an issue of damages to the rental unit. It wouldn't be any different if a dog or cat urinated in every corner of the place or if the former tenant cooked curry and made the place smell from the inside out. You need to point your research to leaving the place untenable (for any reason) and what are the landlord's rights.
Good luck. Hire a lawyer if you don't get it before the trial.
The above is good advice. You would be better to argue the smoke oder is so bad, if you can, that no one will rent the apartment. New studies have come out that refute second smoke as causing health problems. Want to know the law without going to law school? Protect yourself against ripoffs? Sign up for a free legal newsletter on various areas of consumer law by going to www.ConsumerLawyerHelp.com.
This is a damage issue. Don't worry about case law as much as the testimony. You will need expert testimony about what it takes to repair the unit.
"Third hand smoke" isn't a very common term, but I understand that it was coined by some Boston doctors as the residue or chemicals left on items exposed to cigarette smoke. Unfortunately, if your lease allowed smoking (or did not prohibit smoking in the apartment), then this will be a difficult case for you. You need to focus on the facts - that the tenant damaged your unit with smoke and that caused or will cause you to spend/lose x$. A tenant's duties are embodied in Florida Statutes 83.52.
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