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Getting Smoked Out By the Neighbors

Thomas3.20.2010
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Getting Smoked Out By the Neighbors

 

 

 

Hey Matt:

My new neighbor downstairs is a smoker. Even with all of our windows and doors shut, I can still smell their smoke. My wife and I are worried because along with our own health, we are concerned about our new daughter’s lungs (11 weeks old). I don’t know if it helps, but we are good renters, never had a late payment nor any complaints. Is there anything we can do?

— Worried new dad, North Park

California state, county, and city laws don’t do much of anything to protect you. There are no laws with regard to second-hand smoke in private, nonbusiness dwellings. (Consider moving to Utah, the only state where your non-smoker rights are better protected by state law.) But your landlord or the dreaded homeowners’ association can make any rules they like about smoking in their buildings. Courts would not consider such rules “discriminatory” because smokers are not recognized as a “protected group” the way, say, the disabled are. Unfortunately for you, existing tenants would be excluded from the new rule. You as superior, star-studded tenants might have some juice with management, so approaching them with your concerns could be fruitful. It’s more expensive to clean up an apartment that was occupied by smokers, so they might be inclined to hear you out. The only legal situation you have on your side is the implied warranty of “habitability” and “peaceful enjoyment” of your home, which applies to every lease. You can challenge your uncooperative landlord in court, saying the smoker interferes with your rights of habitability. But it’s very tough proving to a court that their smoking is unreasonable or a “nuisance.” Based on current case law, it’s been very hard for a case like that to prevail, but it’s an option. If you go that route, you obviously need the (ugh) help of a lawyer. The smoke is most likely coming into your apartment through the building’s ventilation system. If you can close that off in the baby’s room, that could help. Talking politely, calmly to the offending neighbors might help. Or try the Americans for Nonsmokers Rights Foundation (no-smoke.org) for a little moral support.

About the Author
63 years old. 20 year smoker. 11 Years FREE! Diagnosed with COPD. Choosing a Quality LIFE! It is for freedom that Christ has set us free. Stand firm, then, and do not let yourselves be burdened again by a yoke of slavery. -Galatians 5:1