Do I have any legal recourse against my neighbor whose cigarette smoke permeates my condo?

Question

We live in New York state. We own a second-floor condo and our downstairs neighbor smokes quite regularly. The smell is terrible and seems to come through the air vents. Turning on the A/C does not help, since that is where the leak seems to be. Opening the windows does not help, since the smoke escapes her windows and travels up to ours. We run two air filters in our condo and she has agreed to use one in hers, although I can't verify how often she uses it. This helps somewhat, if the odor is slight. However, if, for instance, we've been gone all day, the smoke can be overpowering and severely affects my allergies. Our condo association declined our first request for assistance.

Are there ANY legal precedents in the state of NY that can help us in ANY way?

Thank you for any help!

Moving, unfortunately, is NOT an option. We moved here only last summer and we do not have the financial resources to do so again.

As for smokers, I could care less if they want to poison themselves to death every day of the rest of their lives. But when I can't breathe fresh air, or have clothes that don't stink of smoke, or have to suffer through bad allergic reactions IN MY OWN HOME, then it affects me. And my wife. And my ONE YEAR OLD SON.

go poison yourself, but don't think you have ANY right to do it to me or my family.

Answer 1

You can move.

Why is it that Americans have come to the unfounded conclusion that others should change their lifestyles to be accomodating to the complainer?

Did you ASK when you purchased your condo if anyone near you smoked? If cigarette smoke is so hard on you, perhaps you should consider a single-family dwelling rather than an apartment or condo.

I'm sorry that you have allergies; however, it sounds as though the woman is being accomodating to you by using air filters. Perhaps she's opening her windows in order to alleviate some of the smoke so that it cannot get into the air filtration system? Yet you complain that if she opens her windows, the smoke wafts up to yours. Put fans in the windows pointing outward, then the smoke cannot come inward.

Your condo association declined your request for assistance because your neighbor has the right to enjoyment of her property and if that means she smokes, then that's what it means.

Again, I'm sorry if you suffer allergies, but the world isn't responsible for that nor is anyone responsible for your care and treatment of those allergies. Anyone with such severe allergies should live in a dwelling where they can more effectively control their atmosphere.

What's next with you? You won't like it if another neighbor cooks with curry? Someone's dog drops hair in the hallway or dander in the elevator and causes your allergies to flare up? I'm sorry, sir, but it's people like you that cause more problems and frivilous lawsuits than the Court systems .... or sane people ...... can deal with.

Put your condo on the market, buy a house somewhere and give your entire association one big, collective sigh of relief!

Answer 2

They are thinking of passing just such a law in Belmont, California, where it would be illegal and subject to a fine if you smoke in a condo or apartment dwelling and your neighbors complain. While I feel for you and totally believe it is very unpleasant, it raises a larger issue of people living together in close quarters. There are many other nuisances that arise, e.g., noisy kids, TV or stereo too loud, parties until all hours of the night, drug use/sales with creepy people constantly coming and going, etc., etc. If you can't solve the situation, sue the deep pocket - the cigarette companies that sell the product to begin with. And sue the condo association. You'll probably win, or at least receive a large enough cash settlement where you can buy your own detached dwelling.

Answer 3

She does have the right to smoke in HER own home. I have lived in apartments almost my entire life and I have never had this problem. There might be something wrong with the building structure so if I were you I would look into that. Maybe you could call someone out to fix it. Another solution is to cover up your air vents and buying some window units. She agreed to use a air filter so she is doing YOU a favor so why don't you leave her alone?

Answer 4

I saw a show on this exact problem (maybe 20/20 or something), the two condo owners were trying to come to an agreement, but because it is considered her home she was allowed to smoke and there was nothing the other owner could do. I don't know what state it was in, but it is most likely true for all states.

I know it's not what you wanted to hear, sorry.

Answer 5

If you association has declined your request there is probably
no rule for this conduct, you may want to contact an attorney
do see if there are any laws in New York but I would have
thought that your association would have been aware of
any of these.

Your last option is to move, drastic but effective

Answer 6

You should start with your HOA - homeowner assoc. There are normally rules regarding pets or other similar issues like smells or cleaning. If they are unable or taking too long to compile, you can file a complaint with your local county Health Dept. Neither one will likely be able to do anything unless there is a really strong odor & visible signs of poop/pee/dirty cages. What smells to you can be quite different to someone accustomed to pet odors. My 1st action would be to suck it up & speak directly to the neighbor. They may not realize how the odor affects other folks or how strong it is unless someone steps up & speaks to them. I know ppl hate confrontation but it can be done w/o yelling or screaming or hateful talk.

Answer 7

Under the common law, there is a concept called nuisance, that allows a person to bring a lawsuit to enjoin (stop) any activity or practice that is offensive to the senses. In California, nuisance is defined in our Civil Code thusly:

"Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance."

There is one case ongoing here now where neighbors of people who were having religious services that involved bonfires sued to enjoin the bonfires because the neighbors "engaged in and participated in large ceremonial event gatherings in their backyard. These events involved the starting of a large ceremonial outdoor open fire that spewed flames, hot ashes, and nauseous and offensive smoke and odor into the air. These hot ashes, nauseous and offensive smoke and odor have blown over into plaintiffs' property and into plaintiffs' residences through windows and doors.”

The religious ceremony people filed a special motion here to strike the action because it infringed on their religious rights. On April 25 of this year, the Court of Appeal said (without opining on the merits of the case) that the lawsuit could proceed, in spite of the motion.

So, yes, there is probably something you can do. You can file a lawsuit to enjoin the nuisance created by your neighbors. Unfortunately, this is likely to be EXPENSIVE. A lawyer would probably not take the case on a contingency because there is little chance that any serious money would be awarded. However, you might be able to enjoin the nuisance.

Answer 8

I am a smoker but have never smoked in my home and would be irate if I had the smell in my home it's an unpleasant smell and inconsiderate to you and your family's health, If you don't have money resources to move contact different News Stations. Good Luck

Answer 9

No, people have a right to smoke in their home. This is sadly a part of owning a condo. Try a good air purifier.

Answer 10

As long as smoking and tobacco remain legal, you will just have to put up with it or adjust your life.

The smokers have just as much right to enjoy their home as you do. If it is so awful, move.

There is nothing your condo association can do either unless the complex is designated all non-smoking.