Question: I live in an apartment building that only allows cats, but no dogs. My daughter wants to visit me for two days and she has a little dog that she must bring with her. My manager says she can’t even have it on the property even if she is just visiting. Can they do that?

Landlord’s attorney Smith replies:

As the landlord’s attorney, I regret to inform you that the no-dog provision applies to guests and invitees as well. It is not unreasonable to prohibit pets in the premises. Further, it is unfair to other residents to allow your daughter to have a pet, even though it’s only for two days. While I am sure you anticipate no problems, there could be barking, snipping and other associated problems. Please have your daughter keep her dog in a kennel for the 2-day period.

Tenant’s attorney Kellman replies:

Put the dog in a kennel and miss the visit? I do not think so. Heck, dogs have feelings, too. A rule stating that your daughter’s dog cannot even set one paw on the property, even to visit, seems abusive and unlawful to me. Clearly, under certain conditions, a “No Dog” provision in a lease can be a valid restriction regarding dogs residing in the unit. Such a provision should not restrict an invitee from bringing his/her dog for a short visit. The first amendment to the U.S. Constitution guarantees us the freedom of association. Telling you that your daughter cannot bring her dog on a 2-day visit seriously impacts that freedom. It is like saying, since you have a dog and wish to travel with it, do not visit here at all, you are not welcome. Why stop there? How about saying that anyone with insufficient credit to qualify for residency cannot visit either? While landlords wish to minimize the costs associated with ordinary wear and tear in their buildings, restrictive policies may not be so unreasonable as to strip tenants of their rights. I think your daughter should be able to visit anytime she pleases with or without her dog.

Question: We rent a 3-bedroom, multilevel house. The neighbor “upwind” from the house has an older, one-story home with a fireplace and chimney that is below the level of the bedroom windows on our house. On cool days and evenings, he burns magazines and newspapers in the fireplace, and the reeking, full smoke comes right into our house; it seeps in even when the windows are closed. After complaining to our landlord, he called local air pollution control authorities. They told him there was nothing they could legally do to stop the neighbor from creating this awful smoke, but offered to mail the neighbor a pamphlet about how to use a fireplace. The neighbor is a renter – can we complain to his landlord or what should we do?

Landlord’s attorney Smith replies:

I sympathize with your situation. However, your landlord is not in control of the neighboring property, which is under separate ownership. This limits what your landlord can or should do for you regarding the noxious fumes from the adjacent chimney. Both of you should take action against the neighboring landlord and the tenant. The smoke constitutes a nuisance and interference with your quiet enjoyment. Write a letter to both the tenant and landlord requesting that this be stopped. If they fail to comply then consider further legal proceedings.

Tenant’s attorney Kellman replies:

The landlord must supply you with a dwelling free of significant defects affecting habitability and, as Ted points out, free from interference with your use and quiet enjoyment of the rental. While it is true that the neighbor is the main cause of this smoke problem, you should not have to hold your breath waiting for a solution. It is the landlord who must resolve this matter. You, as a tenant, are entitled to expect the rental to be in a safe and habitable condition. The fact that the landlord’s building is facing difficulties with adjoining properties is his problem not yours. In residential rental situations, tenants do not need to worry about such things as who made those leaky pipes, where did those frayed wires come from or, in this case, why do the neighbors send their smoke your way. If it is a problem not caused by the tenant, it is one that should be fixed by the landlord. He did make some effort to resolve the matter, but that has not been successful. If legal action is now needed to stop the smoke, it is up to your landlord to handle it at his or her expense, not yours. You are probably entitled to a partial rent offset (i.e. refund) for having to live like that until the problem is resolved.

This column on issues confronting tenants and landlords is written by property manager Robert Griswold, author of “Property Management for Dummies” and co-author of “Real Estate Investing for Dummies,” and San Diego attorneys Steven R. Kellman, director of the Tenant’s Legal Center, and Ted Smith, principal in a firm representing landlords.

E-mail your questions to Rental Q&A at rgriswold.inman@retodayradio.com.

Questions should be brief and cannot be answered individually.

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What’s your opinion? Send your Letter to the Editor to opinion@inman.com.

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