When Cigarette Smoke Invades Your Home Homeowners and renters have the ability to take action against cigarette-smoking neighbors.

Non-smoking rules in public areas have swept the country, but until recently, the only thing you could do if the smoke drifting into your home, condominium, or apartment from your neighbor’s cigarette irritated you was move out. However, the situation is changing, and nonsmokers who are concerned by their neighbors’ smoking may discover that they may now take action.

Make a No-Smoking Lease Mandatory

Whether the smoke bothers you, check to see if the rental agreement has a no-smoking provision; these restrictions are becoming increasingly prevalent. If it does, the renter is in breach of the lease, and you may be able to persuade the landlord to enforce the condition (that is, tell the smoker to stop or move out). If the smoker refuses to comply with the provision, it is up to the landlord to take the appropriate action (evict the smoker). When a large number of neighbors complain, the landlord may be more compelled to intervene.

Even though the contract does not specifically ban smoking, the landlord may be justified in evicting the smoking tenant if the cigarette smoke is actually bothersome and interferes with your ability to enjoy living in your own apartment unit. All renters have the right to “quiet enjoyment,” a charming-sounding legal notion that allows tenants to inhabit their flats in tranquility while also holding them accountable for not disturbing their neighbors. (This idea is spelled out in certain leases and rental agreements, but it applies to everyone even if it isn’t in the rental contracts.)

It is the landlord’s responsibility to uphold both ends of the deal. If your neighbor’s smoking causes your flat to smell like cigarettes on a regular basis, the smoking renter is definitely infringing on your right to peaceful pleasure. Again, you’ll have to persuade the landlord to take action by threatening the smoker with eviction.

Implement a no-smoking CC&R.

If the bothersome smoker resides in a planned development or a condominium with smoking covenants, conditions, and restrictions (“CC&Rs”), you or the homeowners’ association may sue the smoker. Understanding Homeowners’ Associations and Covenants, Conditions, and Restrictions.

You Should Sue Your Neighbor

Even if the smoker does not reside in an area where smoking is prohibited, a judge may be sympathetic if you suit the smoker for causing a private nuisance (interfering with your ability to use and enjoy your property).

Example 1: A nonsmoker was granted $1,000 by a Florida court after successfully arguing that her condominium neighbor’s smoking constituted trespass, a nuisance, and infringed her right to peaceful enjoyment. The nonsmoker and her family faced health difficulties as a consequence of the smoking and had to sleep elsewhere on occasion when the smoke from the nearby condominium was very intense. (Broward County Court of Appeal, Merrill v. Bosser, No. 05-4239 COCE 53 (June 29, 2005).)

Example 2: Under Boston, a jury found that a heavy-smoking couple may be removed from their leased apartment, despite the fact that smoking was permitted in their lease. After numerous neighbors complained about cigarette odors flowing into their units, the landlord issued them seven days’ notice to go. The couple challenged the eviction, claiming that smoke from their flat had spread owing to broken air-conditioning equipment, but the landlord won. (Boston Globe, June 16, 2005, p. B1.)

Check the Laws in Your State

At least one state, Utah, has now included tobacco smoke in its definition of a private nuisance. Second-hand smoke is considered a nuisance in Utah if it enters any residential unit more than once a week for at least two weeks and interferes with the neighbor’s “comfortable enjoyment of life or property.” If the neighbor signed a lease, restricted covenant, or purchase agreement surrendering his right to sue a neighbor for producing a nuisance by smoking, the protection does not apply. An irritated neighbor in Utah may sue the smoker personally and, in certain situations, the landlord if the smoker is a rental. (See Utah Code Ann. 78-38-1.)

Second-hand smoking is classified as a hazardous pollutant by the California Air Resources Board.