Ask attorney Brad is a feature with attorney Bradley S. Kraus and this week the question is about how to prove a tenant is smoking marijuana in violation of lease and what action to take. If you have a question for Brad, please feel out the form below.
Ask Attorney Brad:
Hello, I have a tenant who smokes marijuana, and the lease states no smoking at all.
How can I prove that she is smoking to prove it to the judge in court? Thanks.
Thank you for your email. Smoking issues can prove challenging when it comes to proof.
If no one sees the tenant smoking, how can you prove it’s occurring?
Well, there’s a couple different methods you may be able to employ.
First, the complaints of smoke smell likely came from neighbors. Try to “box” the smoke in, which will assist you with pointing the finger at this tenant. In essence, if the neighbor above, the neighbor below, and the neighbors on both the left and right sides of the tenant smells smoke, and that smell is strongest towards the alleged smoker, then there’s certainly favorable circumstantial evidence to suggest that particular tenant is smoking.
Second, marijuana smoke can leave a particular odor in an enclosed area. If you inspect the property, and the place stinks of marijuana (but none of the surrounding neighbors’ premises smell like marijuana), again, there’s a favorable inference to be had there.
Finally, if you have an onsite manager, it may be appropriate to have that individual walk through the hallway (assuming it’s a multifamily building) when there’s a smoking complaint. If the manager walks by the tenant’s door, and can smell marijuana from the outside, that’s solid proof.
Ultimately, the best proof is what you can see, and have someone testify to. If you don’t have that type of proof, there’s always risk . . . but that risk must be weighed against the headaches your other tenants are currently experiencing.
Brad Kraus is a partner at Warren Allen LLP. His primary practice area is landlord/tenant law, but he also assists clients with various litigation matters, probate matters, real estate disputes, and family-law matters. A native of New Ulm, Minnesota, he continues to root for Minnesota sports teams in his free time.
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