How Do I Stop Neighbors' Marijuana Smoke From Drifting Into My Child’s Bedroom?

Protecting a toddler from secondhand pot smoke.

Question

I live in a state where marijuana is now legal. My neighbor is taking full advantage of this new freedom. In the evening, when I enter my toddler’s bedroom, I can smell marijuana. My neighbor’s back porch is separated from my house by only a few feet. When he smokes in his backyard, the smoke drifts towards my house.

Do I have to keep all my windows closed? Or is there a way to stop my neighbor from smoking right next to my child’s bedroom?

Answer

The answer to this question will depend not only on what state you live in, but also what city or county. Regardless of where you live, though, in cases like this, a good first step is often to talk the neighbor. It is possible your neighbor is unaware that his smoke is drifting into your house. By approaching your neighbor in a considerate manner, you may be able to resolve the problem quickly, and without straining the relationship.

Another relatively informal way to resolve this type of dispute is through mediation. Meditation allows parties to try to resolve their dispute without going to court (and with a lot less risk and expense). In mediation, a neutral third party (the mediator) meets with the two (or more) sides to help them find a mutually agreeable resolution. Mediation is particularly well suited for non-financial disputes, as is often the case in neighbor disputes.

If informal resolution is unsuccessful or not an option, it will be important to become familiar with state and local law on marijuana use. In states like Oregon, Colorado, and Washington, where marijuana is now legal to smoke recreationally, the law prohibits public consumption of marijuana.

What this typically means, though, is that the consumer can smoke marijuana in a place not accessible by the general public. A back porch, out of view of the public and on private property, is unlikely to run afoul of the public consumption restriction.

That said, the marijuana smoke and odor may still be a nuisance warranting a civil lawsuit. “Nuisance” is usually defined as “something that interferes with the use of property by being irritating, offensive, obstructive, or dangerous. Nuisances include a wide range of conditions, everything from a chemical plant's noxious odors to a neighbor's dog barking.”

There are two types of nuisances, public and private. A public nuisance is an unreasonable interference with a right common to the general public, such as toxic fumes settling over a whole neighborhood. A private nuisance is a condition that is more specific to a person’s use of his or her own property (like a neighbor’s barking dog). In cases like yours, since the smoke is affecting only you, a claim against your neighbor for private nuisance may be your best bet.

To prove that something is a private nuisance, you must show that the smoker has unreasonably interfered with your use and enjoyment of your property. The court will weigh the gravity of the harm to the utility of the conduct causing the harm. With both cigarette smoke and marijuana smoke, court’s have been hesitant to declare the odor in itself a nuisance. If it is possible to prevail on a nuisance claim, you will likely have to prove some harm beyond being offended by the smell.

Some courts also have been hesitant to declare something a nuisance when it is allowed by law. What that could mean is that, unless there is a law on the books stating otherwise, a court will be hesitant to say marijuana smoke coming from private property is a nuisance because it is lawful to smoke on private property.

However, some cities are drafting ordinances that make marijuana smoke that wafts over to a neighbor’s property a nuisance. If that is the case in your area, calling local law enforcement may lead to a citation against your neighbor. A citation may encourage him to start smoking elsewhere on his property, so that the smoke does not make it to your house.

It may also prove helpful, if you live in a subdivision, to become familiar with the Declaration of Covenants, Conditions, and Restrictions (“CC&Rs”), as this document may include restrictions on drifting smoke and odors. If that is the case, you should look into, by reviewing both the CC&Rs and bylaws, how to enforce the any such restriction. If there is no prohibition against wafting smoke, you may want to consider raising the issue at the next homeowners’ association board meeting.

Since medical and recreational marijuana have only recently been legalized (and not yet in every state), the law relating to wafting marijuana smoke and odor is still developing. An attorney can help make sure you are up to date with the latest developments. And if you are worried about the impact on your child’s health, you should talk to a medical professional.

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