You could pursue some or all of the four possible strategies described below. (Note that this information is specific to people living in a condominium in California. If you live in an apartment or a private home and are affected by drifting secondhand smoke, please see separate questions regarding these situations.)
- Create a voluntary agreement with your smoking neighbor to limit where he or she smokes;
- Encourage your Homeowners’ Association (HOA) to adopt a smokefree policy;
- File a lawsuit against the HOA and/or your smoking neighbor based on legal grounds such as nuisance, breach of contract, and/or trespass; and/or
- Urge your local elected officials to adopt a law to restrict smoking in multi-unit housing.
One option is for you to try and reach a voluntary agreement with your smoking neighbor. The neighbor could, for example, agree to limit where he smokes or the times when he smokes. Such an agreement is not legally binding. Americans for Nonsmokers' Rights (ANR) has a publication called "The Smoker Next Door: Handling Unwanted Tobacco Smoke in Apartments and Condominiums," which can be useful for pursuing a voluntary agreement.
Although you and your neighbor may be able to work out an agreement on your own, there are mediation and dispute resolution programs that can assist people with disputes like this.
Your Homeowners’ Association (HOA) has the legal ability to prohibit smoking in indoor and outdoor common areas of the condo complex, as well as to restrict smoking in individual units. For details on how an HOA could adopt such a policy, see our publication, “How to Make a Condo Complex Smokefree.”
You might also want to look at the website for RESPECT, a project of the American Lung Association, which has a section addressing drifting smoke in multi-unit housing.
Another option is to bring a lawsuit against the HOA and/or the neighbor. Our publication “Options for Condo Owners Suffering from Drifting Secondhand Smoke” provides information about this option. We do not provide direct legal services to clients, so we would not be able to represent you in a lawsuit.
Another avenue you might want to pursue is filing a lawsuit in small claims court. In this case, you would represent yourself and not have to hire an attorney. The California Department of Consumer Affairs has developed a helpful handbook, “The Dos and Don'ts of Using the Small Claims Court,” to answer questions about the process of resolving a dispute in small claims court.
Smokefree Housing Law
You may also want to contact a local elected official about your problem, and suggest the City consider passing a law to protect people living in multi-unit housing from secondhand smoke. As a result of citizens like you, a number of communities have passed local laws restricting smoking in apartments and condos. If you would like more information about this option, contact us and we can put you in touch with your local community coalition working on tobacco control issues.
Whatever course of action you take, please consider your health. If that means moving to get away from the secondhand smoke, you may want to think about this as a possibility.
We wishe you luck with this difficult situation.