Tenant moved out after his year lease was up. I can smell cigarette/pot smoke in the house. How do I prove it to a judge? Is there a wipe test? Obvious red/brown streaks on the bathroom walls, his favorite smoking room.

I have a clause in the lease that he owes $400 for smoking in the unit, but I don't want it challenged in court if it comes to that.

thanks!

Sorry for your dilemma. I've never tested below in court as tenants and a parent fessed up and gave up the security deposit. Same as for burning candles, cigarettes leave soot on walls. What are your wall colors? If white or cream you might note the inner corners look cleaner than the walls. Those pics are helpful. If you are challenged in court, you need evidence. Having before pics/documentation- proof the unit was freshly painted or not smoked in would be essential. If not freshly painted, I keep the move in/move out docs from he last tenant where there was no smoking, therefore nothing deducted. Also use this departing tenant's docs where he did not note the unit had smoke/soot damage. for a wipe test, clean a wall and keep a small towel you used to wipe down the soot. For a good pic, clean an area of the wall take pics showing the cleaned area amongst the soot.

If you have carpet that get cleaned in between tenants, have the carpet cleaner note the smell on his bill. Same with plumber. We have our plumber do drain cleanings after tenants move. Have plumber document on the bill the bathroom walls and smells. If you hire painters, have them clean and itemize the steps taken to restore the walls, noting the smoke damage. Are there cig butts anywhere in property? Pics. I had a tenant put his cigarette out on a new energy star window. Charged and got no push back.

Not knowing the pushback type of tenant you have, could you approach him that $400 due to smoke damage? For me, $400 would not be enough to cover my costs.

I think it comes to who your judge believes.

Perhaps your lease says something to the effect of - tenant bears responsibility for all costs to make unit rent ready after vacating.

Hire someone to remove the stench. Their bill will need to note "strong smell of cigarettes... ran ozone machine for X-hours. Kilz paint on walls... steam clean carpets."

$400 is way too small for smokers. I'd revise the lease like Sisco suggested to ensure you aren't left hanging. There is no "win" in limiting your remedy to less than the cost of remediation.

Btw, I also have a management fee of 10% or $50, whichever is greater, that attaches on to every make-ready charge caused by the tenant. This covers my time and expenses documenting the issue(s), coordinating the contractors, and reviewing the work upon completion. Easily 2 trips and 15-30 minutes of phone time and emails. I don't work for free, and if the tenant would have done what they were supposed to do those expenses and my time would not have been necessary.

There are surface wall tests for THC, the chemical in marijuana. You take the swab out of the kit, wipe the wall, and insert it in a liquid vial. It changes colors and compare it against a color card. Unfortunately, I've never found one for cigarette smoke (nicotine). Here's one available on amazon.

This may be a bit dramatic, but a couple ideas:

1) Place a cloth item in the house and leave it overnight...such as a small pillow or towel. Then put it in a ziplock bag...it will have the smell. Take it to court and offer it to the judge...this may piss off the judge so consider this carefully.

2) Take a small bucket of clean soapy water, put a rag in it, leave a small amount of water in it, and wipe down a section of wall, then wring the rag into a clear plastic bottle so that you can see the discolored water. Take this to court.

I ran across this device last year and I was thinking about picking up one. Basically you plug it into an outlet and it's tamper proof. It sends alerts to your phone once it to text cigarette smoke. They use it in hotels to enforce non-smoking rules. If I recollect correctly it runs about 200 bucks per unit:

Under normal circumstances I have my gardener or manager take out the trash cans for City Pick-Up. But I have my gardener skip a weekly trash day and do it myself. While I'm consolidating the trash (Tenants never fill up a can and then start a new one) -- using my poll claw picker-upper, I find in the trash a dozen cigarette packs. All the same brand and mixed in with the trash of my suspected smoking tenant.

So one day when the tenant is home, I knock on the door and ask if I can check the smoke detectors, or I can give them a 24 hours notice. With my noise I can easily smell if there is smoke and can see with my eye if there are ask trays for smoking.

gevans,

My lease is clear: no smoking, including guests. $25 per wall to wash plus $275 per room the repaint. Ceiling fans, drapes, blinds etc will be charged replacement cost.

I use Vee’s suggestion to clean a square on the wall and take a photo showing the oddly clean patch on the wall.

I like his new idea to save the rag for court.

On a cat urine case I cut a square and triple bagged it. Triple was not enough to contain the odor. When I brought it to court the judge practically jumped up when he yelled “Get that thing out of my courtroom!”

Recently has a single gal move out. The walls had a weird color that I’ve never seen, not the usually amber nicotine. When water touched it the color turned to a dark greenish black.

Her Dad complained we charged to wash the walls and repaint. I wrote back that we believe it to be marijuana residue. (Illegal in Indiana)

He instantly shut up and paid her whole bill.

Last week the walk thru revealed he was throwing his thousands of butts into a CARDBOARD BOX!

We have a clause in the lease that states minimum $400 charge if anyone smokes anything in the unit. Just want to cover my bases in case I have to prove it in court. I'm gonna do the wipe test on video and bag the paper towel.

...and take a picture of the wall you took the sample from. Then date the outside of the bag. Done!

Heads up...

MY court and others will not accept video evidence.

And I have never been able to screen grab a super clean still, even of an iPhone 14.

Stills ALWAYS work in court.

MY court scans all evidence so it must be flat.

PS

100+ good clear move IN photos is LLing 101.

Without those a photo showing nicotine at move out is worthless.

Gotta prove the walls were clean at move in to justify a cleaning expense.

Even a sleazy lawyer has trouble arguing against BEFORE and AFTER photos.

Sometimes the win in court goes to the person with the most evidence.

I don't mean to argue or cast any shadows on the advice of my good buddy Brad, but having 100s of pictures seems a bit... cumbersome for the average LL who isn't full timing it, like me and many here.

If video isn't allowed in your court, I'd probably stick with one picture of each wall, one of the floor and one of the ceiling in each room. I'm blessed that video IS allowed in our court, so it takes me only 3-4 minutes to walk through the interior, staying on the left wall, which means I get through the entire interior perimeter and don't miss anything. Then with camera still rolling, I go outside and around the unit, showing the street, the address, the yard, etc.

The problem with photos: how do you prove photo was taken on X-date? Dates and time stamps can be manipulated easily enough with even the most basic free photo editing software. Are you going to required a tenant to sign/initial 100+ photos and then carefully store them somewhere?

Sleazy lawyers have no trouble arguing ANYTHING, which means more money out of your pocket. The reason I can say this is I've had a tenant get a free lawyer who argued she shouldn't have to pay rent because she moved her druggie son in law in without permission and he stole her rent money. Somehow, that was my fault. They will argue anything to get courtroom experience, which gets them to move on up to a bigger firm.

Law offices don't really care ultimately if their clients win or lose, as long as their fee gets paid. "Your" attorney will argue you into bankruptcy if you aren't careful.

I've never had a judge even ask to see my before or after photos. For years, I just used a move-in/move-out written checklist. Even that got cumbersome, and since then I've learned that a contractor's invoice suffices. So I'm not going to waste tons of time and money and computer storage on 100s of pictures.

I do video just in case as a backup, because while I was waiting my turn in court one day the judge allowed another landlord before me to present video evidence. Just have it on a thumb drive in case he / she decides to take the case under advisement: they will need to keep your video footage, and you don't want to leave him your phone.

Now I will extoll one of my buddy Brad's pieces of advice: gotta know YOUR judge(s). What do they accept as evidence? Choose the easiest method that works. If pictures and carpet samples work and are allowed, then do it. If you can get by with invoices and/or video, those are much easier.

Sid,

My area doesn't allow videos either. Maybe its an Indiana thing?

I don't take the before pictures with me, just the ones showing the damage. I don't take the pictures of the place fixed up either. I just tell the judge that it is back up and rented. I don't have slumlord places so I guess that's good enough.