Real Estate & Property Law

Bothered By Smoke From Your Neighbor's Unit? Do Something About it!

Many people are bothered by smoke from the neighbors in tight living situations like apartment living and condo living. In California, more and more cities are passing ordinances that place severe restrictions on smoking and the state is also involved in passing laws.

Here is an email from a reader on the topic:

"My question to you and your members? is there any legal recourse or suggestions to second hand smoke exposure ? I currently have two neighbors (both claim it?s not them) that smoke and I have written letters to them to request assistance to them; one got a formal certified letter to respond ? never responded. I submitted solutions etc. to him, the other resident is a board member who somehow feels his board status (the board members are all tight friends that socialize openly) excludes him from any action, the management company agent stated ' it is almost impossible to control, contain and monitor second hand smoke and they have never had any complaints with any of their associations'. "

No doubt it is hard to control, contain and monitor second hand smoke. A lot of associations are being proactive anyway, to protect their members. Lots are looking at no smoking amendments, either prohibiting smoking in common areas or prohibiting smoking that wafts into the neighbor's unit. I have little sympathy for the smokers and believe that there are legal rights because smoking is a nuisance. I have talked in other blogs about checking the documents, asking the HOA or Condo board for assistance in enforcing nuisance clauses in the governing documents ... AND ... getting proactive yourselves. In California, owners can enforce the CC&Rs nuisance clauses too, and private nuisances too! So don't sit on your duff and wait for someone else to solve your problem. Gather evidence, review the governing documents to see what assistance is there, check local smoking ordinances, get a note from your doctor if you are adversely affected by the smoke, and communicate with neighbors about the offensive conduct, try to engage the neighbors in mediation to discuss solutions, and go to small claims court if you need to, to ask for nuisance damages. If you are not being unreasonable, you will probably prevail in any action, or at the least, get the small claims court hearing to issue a warning to the smoker.

Full post as published by California Condo & HOA Law on October 21, 2010 (boomark / email).