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When Does a Neighbor’s Smoking Become Your Nuisance?

Secondhand smoke is classified as a carcinogen. When your neighbor’s smoke comes wafting into your home, it poses a health hazard according to the American Lung Association’s Center for Tobacco Policy & Organizing. While no comprehensive state laws address the problem, with Californians living so close to one another, is there anything you can do?

The legal landscape in California shook in 2013 when Kim and Kai Chauncey filed a lawsuit against their HOA, its management company, the landlord of the condo next door and the neighboring tenants renting the condo unit. The neighbors’ “incessant” smoking infiltrated into the Chauncey’s rental unit. Their numerous complaints went unheeded by everyone until finally the Chaunceys had had enough and sued.

An Orange County jury found Bella Palermo HOA, its management company, the landlord of the adjoining unit and two of the rental tenants next door had in fact deprived the Chauncys of the “quiet enjoyment” of their condo. The Chaunceys were awarded $6,000 in economic damages and $9,500 for emotional damages.

Although secondhand smoke was not specifically addressed in the CC&Rs, they did contain a nuisance provision and other provisions requiring the association to ensure the owners “quiet enjoyment” of their unit. Liability arose from the failure of the HOA and management company to enforce that nuisance provision and the defendants’ violation of the Chauncey’s right to “quiet enjoyment.”

The demand for smoke free living is increasing. The California Apartment Association supports smoke-free housing. A 2014 survey of 1,636 California renters across 12 counties commissioned by the American Lung Association and conducted by an independent research firm found that 61% of renters favored a smoking ban inside apartment units, 34% opposed. 45% favor a smoking ban inside units even if they live in a smoking household. Support was higher among Latinos, renters under age 50, and women.

As of January 2012, California landlords may restrict or ban smoking in all or part of the rental premises, common areas and individual units. All leases signed after that date must include the landlord’s smoking policy. Smoking must be prohibited within 25 feet of any children’s play area or “tot lot” sandbox area at any apartment complex.

Recently, the California Assembly passed a bill that would ban tobacco and electronic cigarettes in federal public housing projects in California. The ban is similar to the measure passed by HUD.

Anyone seeking advice or support in trying to resolve a secondhand smoke issue can call 1-800-Lung USA (1-800-586-4872).

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About the Author

Ross Teasley

A long-time Dana Pointer, technologist and publisher, I have been involved in several initiatives around Dana Point over the years ranging from environmental issues to civic planning. Fueled by coffee.

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