If there is a lawyer or someone with legal background who is a
researcher, would love for you to read this and get your take on the
situation. And would love any comments from anyone else.
OK, let me layout background first:
I have an apartment that I rent, where i take a subtenant(roommate) to
occupy one of the rooms. I took in a roommate about six months ago
and before I accepted her, asked her a series of verbal questions -
the usual, if she had any legal problems, medical problems, used
drugs, did she smoke, drink, etc. She clearly said she was a
nonsmoker during that interview.
Anyway, she moved in and a couple of months went by. Anyway, I would
drop off her mail in her room occassionally. She kept the door
closed. When I opened it, I would notice that the room had a very
distinctive smell to it - wasn't sure if it was cigarette smoke,
incense, or to be honest, simply a type of body odor or spice (she is
of a different ethnicity than my own). So I didn't really think too
much about it.
Another thing I noticed was that she would strangely leave the apt.
often at night for 20 minutes to half hour or so and then come back
and always carrying a little wristlet purse. I actually joked about
this her leaving every night with her, but she always had another
excuse, grocery store, bank, etc. I was suspicious but whatever. We
live in New York so this would not be too uncommon.
Anyway, the curiousity got to me so when she went out once at night, I
purposely watched her down from my window to see where she was going.
Sure enough, I saw her light up a cigarette across the street and my
suspicion was confirmed. I have since "caught" her smoking a couple
of more times watching from the window to see the extent of her
smoking.
In addition, one time when I put her mail in her room, I saw a small
photo album. I was just kind of curious if her pictures had her
smoking. So I took a peak. Unbelievably, she had FOUR pictures in
that album, taken at different times, each one with cigarette in hand.
This proves to me she is not just an occasional smoker, but she has
been a smoker for years and a fairly heavy one at that.
Since I was clearly seeking a nonsmoker (which I wrote in my roommate
ad and asked her upon her interview) she has clearly lied to me and
there is no doubt about it.
So, my question is:
What types of recourse do I have in this specific situation? She does
not yet know that I know she smokes. Certaintly, I have easy cause
for eviction if I choose to since she misrepresented herself.
However, do I have more legal action? I mean, I certaintly need to
have that room professionally cleaned possibly replacing carpets,
painting walls, etc. to get that smoke smell out of the room, which is
now probably ingrained.
But in addition, do I have a potential lawsuit against her for
deceving me and exposing me to second hand smoke, nicotine, etc? To
be clear, I personally have not seen her smoke in the apartment and
she probably never smoked in common areas, only her room if at all.
But I guess I can't prove that.
So, I would love to hear any comments from others on what I should do
now. Should I evict? gather more evidence? confront her? get a
lawyer?
The question would also be, "Is there any precedent setting case
similar to this that I can look at to see if I can obtain monetary
damages?"
Thanks and would love to hear all comments. |
Clarification of Question by
bagelred-ga
on
22 Mar 2005 13:33 PST
Hmmm...interesting....seems to be comments who think I am the one in
the wrong. I'm not really sure I understand.
Invasion of privacy? Well, first of all, invasion of privacy would
exist in the absence of good cause. I think witnessing and committing
a substantial violation of her tenancy is good cause for taking a look
inside her room, but maybe that's just me. And I didn't exactly go
rampaging through her stuff. I was placing her mail on her bed and
her photo album was sitting right there. I merely took a peak and it
comically gave even more obvious proof to what I had already
witnessed. And of course, she has no knowledge of this and I could
never use those pictures in any case. I merely provided that as
informational purposes that confirmed what I knew.
At first, I said I wasn't sure it was smoke, but I suspected it. This
was BEFORE I actually saw her smoking. Now that I actually have
witnessed her smoking several times, I am reasonably sure this is the
smell. Have you ever been to a hotel and are given a "smoking" room
instead of "nonsmoking" room by mistake? you know instantly when you
enter the room. Same thing here, except I just wasn't sure it was
smoke, since she claimed she was a nonsmoker, thus giving her benefit
of doubt it might have been something else. But now I know it isn't.
Also, I think I've been damaged in several ways. Firstly, I am having
to have trouble renting that room out to someone, because that smell
will most likely not be gone. It's very pervasive. I now have a room
in my own home which I cannot habitate in. I think that's cause right
there.
IN addition, I do not know if the smoke can affect me in some way with
second hand smoke, nicotine, etc. How would I know? Would I have to
contract lung disease before I can claim to have been affected with
second hand smoke?
Remember, SHE is the one that is affecting my home and my right to
live in a completely smoke free environment. It seems the comments so
far think I'm being ridiculous, but I don't think so.
More thoughts?
|
Clarification of Question by
bagelred-ga
on
22 Mar 2005 16:52 PST
----- "As I see it, you gave up your "right to live in a completely smoke
free environment" when you invited a roommate into your home."-------
willcodeforfood
Huh? That doesn't make any sense legally. It's the opposite. She has
to give up the right to smoke, which she agreed to legally, to take
residence in the apartment. I am certaintly in my right to demand a
smoke free enviroment.
This isn't a brother/sister spat, this is a LEGALLY BINDING AGREEMENT, isn't it?
So if an employer demands a smoke free environment from his employees,
and an employee agrees upon hiring, does the employer give up his
right to smoke free environment if it turns out she smokes? I don't
think so. The laws to protect nonsmokers are pretty strict.
So if we agree that there is no pets, and she decides to bring in five
dogs, 3 cats, and a bunny, your logic would say "i've given up the
right to a pet free environment?" If we agree to no loud music, but
she plays her music at a level that can crack glass, have I given up
my right to "reasonably quiet" environment? If she claims not to have
a medical condition, and it turns out she actually knowlingly had a
dangerous deadly contagious disease, I have given up the right to try
to maintain healthy? I don't think any court would buy any of these
arguments....
In addition, what piece of document could i possibly provide with her
signature that says she smokes? Probably unlikely she will sign a
document saying "Yes, my name is Jane Doe and I admit I'm a smoker"
Probably not gonna happen. Now, I COULD obtain evidence, such as
witnesses, photographs of her smoking outside, get an expert to test
the room for known cigarette toxins in the room , etc. But I'm not
sure if that would be all necessary. I don't think the burden of
proof is a signed document saying she smokes. No one would ever
reasonably have that and judge would not expect that.
Doesn't anyone agree with me? lol
|
Clarification of Question by
bagelred-ga
on
22 Mar 2005 17:45 PST
steph,
true, i probably will just confront her. But I just wanted to hear
all my options, opinions, and gained as much info as possible before I
make a move. Possibly evicting someone is not something I want to do
on a whim, so I want to give it some thought, hence the google
question.
in addition, she is not on the lease and she only has a month to month
agreement, meaning, i can evict her for ANY reason I want (as long as
I give her at least 30 days notice). But I would think smoking could
be immediate eviction if I choose, but i probably would still give her
at least 30 days so as not to cause problems. (in case you are
wondering, she has the right to leave any time too with at least 30
days notice to me...so it works both ways).
but steph, you are also missing the point alittle. She misrepresented
herself completely in her initial interview, which bothers me just as
much as the smoking itself. She blatantly lied about that and I have
sort of caught her lying in a couple of small items as well. What
else is she lying about? It's almost as much trust as it is the
smoking. Don't get me wrong though, I am very antismoking, that is
the main reason.
Communication? You are right, I could just ask her. But she would
probably lie about it anyway, since that is what I've come to expect.
She is well aware I don't like smoking, thus the deception by her.
I realize she is not a criminal. I totally support peoples right to
smoke. I say whatever you want to do to your own body, go for it.
Smoke up a storm in your own home. But NOT IN MY HOME! that's the
difference. Most nonsmokers are not against smokers per se, just the
second hand smoke in our faces pi$$es us off.
Thanks for the comments Steph. Good to hear other peoples opinions.
I'm still surprised I haven't hit on one person who agrees with me and
the way I'm thinking. Oh well. :)
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