Smoking Pipes and Cigarettes – What Can You Do About the Nuisance?

Posted this in my other blog too. It’s a HOT TOPIC!

Here is a question I received recently, and some info about a new proposed law:

“In our HOA a new neighbor has moved in who smokes cigars outside on his deck, all day long. The neighbor on one side and myself are inundated with the nasty smell and cannot open our patio doors because it wafts in and we smoke the nasty thing with him. Therefore, we are held captive in our homes while he sits outside smoking and enjoying the beautiful day.

I know there is a bill in the assembly regarding multi-family housing areas and banning smoking all together. I hope it passes.

But, for the present, is there anything we can do now? I’ve told him that I am allergic to cigar smoke, but he doesn’t care.”

 

SECOND ISSUE:

We have a property management company that, through the non-direction of our Board, does not enforce ANY of our written rules and regulations or CCRs … they don’t want to be bothered… . Is there anything the owners can do to make this Board and management company follow and enforce our CC&Rs?  IS IT TIME FOR ME TO SELL AND MOVE 🙂 OR IS THERE ANY ALTERNATIVE?”

 

My response:

 

First of all, smoking is personal and a person who smokes need not be subject to any punishment for hurting themselves, but second hand smoke is offensive and harmful to the health of others. Therefore, it is a nuisance.  Every set of CC&Rs I have seen has a prohibition on nuisances, and also has some remedies for violations.

 

Personally, I had this problem at a vacation home one time. My family and I could not use the balcony without smelling the neighbors’ cigarette smoke, and they were outside on their neighboring deck all the time. We couldn’t sit outside, cook outside, or even leave the sliding glass door open. So we asked management at the registration office for a big fan, brought it to the unit with an extension cord, put it outside, and turned it on toward the smoker’s deck. They got a taste of their own medicine and we got fresher air.

 

I know that may not work as a permanent solution. A board can address the nuisance if it is willing – and I think it should at the least look at possible disciplinary action if a person cannot use their deck. Does it have to sue? No. An owner can also enforce the CC&Rs and small claims court is a reasonable venue for that. It takes a village, people, to attack a nuisance, unless the problem person understands what decency is.

 

As for moving, if it is an option, consider it. If you don’t like the board or its approach, and don’t like the neighbors’ activities, maybe you would enjoy life more somewhere else. However, of course, if the smoking continues unabated, selling or renting might trigger a disclosure issue, unless the buyer is a smoker also.

 

AB 746 is a bill that has been introduced in California this year. It would ban smoking in multifamily units with one or more shared walls, floors, ceilings, or ventilation systems. It would provide that any person who violates it’s provisions would be guilty of an infraction; it creates a new crime.

 

If the law proposed in California passes, boards and owners will have more “teeth” in their fight against smoking nuisances. In fact, municipalities all over the state are getting on board and instigating more protections from second hand smoke. Years and years ago it became almost impossible to smoke in any office building in California, then restaurants and businesses, then bars, and now in many outdoor areas. It’s coming, protection for using your home without having to put up with the smell of smoke. But one does not have to wait for the new law. An owner in a CID can take action and attempt to address the nuisance aspect now. As for my thoughts: I do not believe boards should pass the buck off to the bothered owner, or the bothered owner should pass the buck to the board. I think both should pursue all avenues of relief. I was a smoker years ago when the instituted the protections in offices and I had to go outside to smoke. What made me quit was that it became harder to smoke than to not smoke. Maybe the pressure of neighbors complaining will have some positive effect.

 

Both can file small claims actions. You can ask the court to hear the matters at the same time. The board could join in. Owners can sue for up to $10,000 in damages. The Association can seek up to $5000. I am not suggesting one can expect a huge windfall, but calling someone into court with that kind of outstanding risk would seem to get their attention.  Don’t sue in small claims court asking the judge to order the neighbor to stop smoking. See damages for nuisance and specify a reasonable amount. Tell the judge it would be hard to rent or sell without disclosures and the disclosure could deter buyers or renters. Unless the hearing officer is a smoker (or even if they are), they might help get some kind of message across that it’s not okay to let the smoke waft to the neighbors’ private spaces.

 

 

 

 

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