Featured News 2014 Neighbors & Nuisance Laws: Secondhand Smoke

Neighbors & Nuisance Laws: Secondhand Smoke

While there are many no-smoking ordinances for public locations, it is only recently that non-smoking homeowners and renters have had increasing legal options to counter secondhand smoke that gets into their home. Your legal recourses will depend on the state where you live, as well as any local regulations that apply to your case, such as a leases and CC&Rs. If you want to know about the options in your specific situation, be sure to contact a real estate attorney. In the meantime, keep reading to get an overview of what your options might be.

No-Smoking Clauses

If secondhand smoke is entering your home from a neighbor who rents, then you can find out if they have a no-smoking lease, which is becoming more of a standard. If there is such a clause in place, then that tenant is breaking the terms of their lease. You could go to the landlord and inform them of this habit that is invading your home. Then the landlord is the one who would have to decide to enforce the clause or not, meaning that they could tell that tenant to stop smoking there or to leave. The next step of enforcement would be for the landlord to evict the tenant for continuing to violate the lease.

What if the lease does not include a no-smoking clause? A landlord may still be able to take action if the secondhand smoke is daily disturbing your right to "quiet enjoyment", a right that every tenant has. If this applies to your case, then you might be able to ask the landlord to protect your rights. If the landlord agrees that your rights are being violated, then they could ask the smoker to either move out or stop.

No-Smoking CC&R

A CC&R represents the covenants, conditions, and restrictions under which a condominium or planned development might live. If one of the clauses of the CC&R is one that restricts smoking, then you might be able to personally do something about it, or leave it to your homeowners' association.

Private Nuisance Laws

Perhaps there is no prohibition on smoking in the place where you live. In that case, a smoker whose habit is invading your home might be in violation of a private nuisance law. While at least one state (Utah) specifically singles out tobacco smoke as a private nuisance under certain conditions, you might still be able to successfully sue your neighbor under private nuisance law in your state. For example, California lists secondhand smoke as a toxic contaminant. Juries can be understanding of the unhealthy nuisance secondhand smoke presents.

For example, a Florida condo owner sued her smoking neighbor for making her unable to enjoy her right to quiet enjoyment, establishing that the secondhand smoke affected her family's health and even forced them to spend nights in another place when the neighbor's smoke became thick. The court agreed, and she won her case.

Then in Boston, a couple of heavy smokers fought their eviction, saying that smoking was allowed under their lease, and that a defective air system is what spread the smoke to the many neighbors who had reported the disturbance to their landlord, causing the landlord to give the couple a seven-day notice. The court sided with the landlord, deciding that smoking could justify an eviction in this situation, regardless of there being no restrictive clause because the other tenants had the right to quiet enjoyment.

If you have further questions about neighbor disputes in your state, and what your options are under local laws and ordinances, be sure to contact a real estate attorney from our directory today!

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