Can my upstairs neighbor forbid me from smoking outside on my own private porch?

Question

We used to smoke inside with permission from our landloard who also smokes inside even though our apartment was listed as a non-smoking apartment. We used an exhaust fan and only smoked in one room with the door closed. Our upstairs neighbor complained her apartment was filled with smoke from us. We have been smoking outside for 3+ weeks and she has again complained that she wakes up every morning to smoke and a headache. I guess it's possible that the smoke is going through her window from outside even though I think its still too cold for her window to be open. She leaves notes on my car telling us that smoking causes cancer and yadda yadda. We have respected her wishes to not smoke indoors and now she wants us to smoke outside and AWAY from the house. We have a private back porch and that is where we smoke. I cannot help which way the wind blows. Outside is outside and we pay rent too. Does she have the right to tell/ask us not smoke outside on our own porch?

Answer 1

She is completely out of line. Please don't take that crap from her. You are absolutely right, you have no control over which way the wind blows. You have the right to smoke on your own porch. She needs to accept that. Period.

Answer 2

Your neighbor has no "right" to forbid you to smoke, but if your apartment was listed as a non-smoking apartment it stands to reason that the neighbor has a similar understanding, and this would leave the door open for a valid and strong complaint to the landlord.

Seepage of smoke into an adjoining apartment is a valid health concern, no matter how the seepage occurs.

Given the fact that a pre-existing condition applied when you rented the apartment, that being that yours is a non-smoking apartment, there will also very likely be a condition within the lease agreement that spells this out.


If it is, then you are disobeying a condition of the lease, and it becomes a legal consideration in some areas.

The neighbor may be able to take the matter to another authority for enforcement, such as health department, or perhaps file a court claim, even if the landlord gave you a verbal approval. Both your lease and that of the neighbor would become a mandatory part of the case.

If a court claim was made then the landlord would certainly be named as a co-defendant, and the first thing his/her lawyer would advise him/her to say is that no permission had been given to you, thus leaving you to answer for your own actions, which you acknowledge are against the known terms of your occupancy, and you would have no defense.


Obviously, the neighbor is concerned, and considerably so, and that suggests that other actions are imminent if you continue harrassing the neighbor, which you are definitely doing now, regardless of whatever thoughts you may have to the contrary. .

Why not speak with the landlord and see if another apartment is available, one situated some distance away from the existing neighbor, and where smoking IS allowed?

Answer 3

while you feel the mj is good for you and is your right, you also have to remember that it's making HER sick and it is also her right to not have it around where it can harm her. Many people have different views on marijuana and you're lucky she's patient enough to not call the cops on you automatically (no mater what the individual states say, it's still a federal offense to purchase, posess, smoke and sell it). Try finding somewhere else to smoke it, like a friend who has the same feelings on the stuff as you do. Just don't do it at home while she's living above you. If you keep it up, remember she's been nice so far but it's well within her rights to call a) the landlord to have you evicted or b) the police to have you arrested.

Answer 4

She has no legal right to prohibit you from smoking, but if the apartment was advertised as non-smoking, she can take legal action against the landlord and demand he force you to stop. It would depend on whether or not the apartment was considered non-smoking at the time she moved in. If the landlord misrepresented the apartment as non-smoking and then does not enforce that policy, she can go to court and demand that the landlord make you stop smoking and evict you if you refuse to do so.

I don't understand why this is such an issue. Unless you are very old or crippled, is it really that hard to walk down the street a few paces in order to light up? It's good exercise and will make you more conscious of how often you smoke, which will help you cut down your smoking as well.

Answer 5

Either your neighbor is very sensitive to cigarette smoke (I am ... can't breathe it...makes me sick), or she is bent on sending you the non-smoking message, or both.

Whatever your lease says goes. If it doesn't prohibit smoking, then you can smoke.

It would be courteous of you to find a reasonable solution...it's just the neighborly thing to do. But it shouldn't be an unreasonable solution, like walking 200 feet to have a puff. If there is no way of appeasing this woman, then you may just have to not worry about it, and file complaints about the notes, etc with the landlord. That is harassment on the ladies part.

Good luck to you. And might I suggest trying to quit smoking. I smoked a little as a teen, but never got hooked thankfully.

It is a nasty habit in my opinion, and it's really hard to breathe second hand smoke...but I'm not beating up your right to smoke either...just consider it!

Answer 6

There was a case, not too long ago, that made the news. A couple smoked in their side of a duplex house and the other side of duplex, the couple complained that they could smell the smoke. It went to court and the smokers lost. They cannot even smoke outside at their side of the duplex. Cant remember which state it was in. But , if it goes to court. I would not count on winning without a fight.

Answer 7

I don't think your neighbor can do anything, but you have to understand to a non-smoker it is disturbing to have a neighbor that smokes. The smell can come through the windows and the vents. For some people it really is a health issue not just a nagging neighbor issue.

Answer 8

Absolutely not. You have rights to that property as a tenant and therefore can do whatever you want on that property so long as it is legal. I would suggest you let your landlord know what is going on. If your neighbor has a problem with it, perhaps she can have your landlord move her into another apartment, but you should not have to accomodate your neighbor. Just in case this gets into legal matters, I suggest you keep all the notes from your neighbor and notify your landlord in writing of the harassment.

Answer 9

NO !you tell her if she don't like which way the wind blows take it up with GOD.She is free to move anytime and that if she doesn't stop with the complaints you are going to file harressament charges,the woman is sad just wants attention,or is a control freak and does not deserve your consideration I think you have done enough.and if she wants to pay your rent then you might consider her demands.

Answer 10

She has no legal right to "forbid" you from smoking within the confines of the space you pay for. It would be like you telling her that she cannot water her plants outside because the noise of the water spray causes migraines.