When Secondhand Smoke Invades Your Home

Non-smoking laws that apply to public places are old news, but until more recently, if the smoke wafting into your house, condominium, or apartment from a neighbor's cigarette bothered you, all you could do was try closing windows, putting towels against doorways, and ultimately moving out. The situation is changing, however. Non-smokers who are bothered by a neighbors' smoking (either tobacco or marijuana) might find that they can take action, as described below.

Does Your Neighbor Have Any Legal Right to Smoke?

U.S. law contains no constitutional or other "right to smoke," whether it's tobacco or recreational marijuana. So even though the substance they're smoking might be legal, the location or circumstances in which they can smoke can be restricted by other laws or rules.

Exceptions might be found, however. For example some states make allowances for the traditional use of tobacco by Native Americans. And some states have legalized the use of marijuana for medical purposes. These might create legal defenses to lawsuits or prosecution related to individual usage.

How Dangerous Are Secondhand Tobacco and Marijuana Smoke?

The U.S. Centers for Disease Control (CDC) has concluded that there is no safe level of exposure to secondhand tobacco smoke. It can cause health problems such as heart disease, stroke, and lung cancer, as well as adverse reproductive health effects in women. With regard to children, it can cause infant death syndrome (SIDS), respiratory infections, ear infections, and asthma attacks.

The CDC also states that secondhand marijuana or cannabis smoke contains many of the same toxic and cancer-causing chemicals found in tobacco smoke, and some of those in higher amounts. It might also get you high, if you breathe in enough tetrahydrocannabinol (THC). Also see (or show your landlord or even your neighbor) the ANR Foundation's Secondhand Marijuana Smoke Fact Sheet.

All of which is to say that you'd have good reason to follow up with a neighbor whose smoke wafts your way.

Reaching Out to the Smoking Neighbors

If you haven't already done so, consider approaching your neighbors directly. Rushing to court or another higher authority can destroy any civil relationship you might have previously enjoyed. Start with an assumption that your neighbors' intentions are good. Then either knock on their door, leave a note, or use whatever other communication mode has worked for you before. Ask for a few minutes to talk. Experts recommend that you point to any common ground and expressly acknowledge that the neighbor might not realize how you're impacted by their actions. If you are experiencing health issues as a result of the smoke, or you have a child with asthma, that could be worth mentioning.

If that gets you nowhere, mediation, using a neutral third party, might be an option (as described in these FAQs About Mediating Neighbor Disputes). Or, you might need to escalate, using the methods described below.

If the Smoker Is a Renter: Enforce a No-Smoking Lease

If the smoke that disturbs you comes from someone who rents, find out if the rental agreement contains a no-smoking clause. (If you're in the same building, this should be a simple matter of looking at your own lease; it's probably the same as yours.) If it does prohibit smoking, then the tenant is violating the lease and you might be able to convince the landlord to enforce the clause (that is, tell the smoker to stop or move out).

If the smoker refuses to honor the clause, it's up to the landlord to take the next step (evict the smoker). When a lot of neighbors complain, the landlord might be more motivated to take action.

Even if the lease doesn't prohibit smoking, the landlord might have grounds upon which to evict the smoking tenant if the smoke is truly troublesome and interferes with your ability to enjoy living in your own apartment unit. All tenants enjoy the right to "quiet enjoyment," a quaint-sounding legal principle that gives tenants the right to occupy their apartments in peace (and also imposes upon them the responsibility of not disturbing their neighbors). Some leases and rental agreements include a clause that spells out this principle, but it applies to everyone even if it's not in the rental documents.

It's the landlord's job to enforce this. If the neighbor's smoking makes your own apartment reek to a degree that seriously disturbs you on a daily basis (and perhaps disturbs your visitors as well), the smoking tenant is probably interfering with your right to quiet enjoyment. Again, you'll have to convince the landlord to take action, by asking the smoker to stop or face eviction.

If You Live in an Planned Community or Public Housing, Enforce a No-Smoking Rule

If the troublesome smoker lives in a planned development or a condominium with covenants, conditions, and restrictions ("CC&Rs") prohibiting tobacco and/or cannabis smoking, then either you or the homeowners' association (most likely following up on your complaint) might be able to take legal action against the smoker. For more on handling this, see Understanding Homeowners' Associations & CC&Rs.

Similarly, if you live in a public housing complex, federal regulations (24 CFR Part 965, Subpart G) require that they be smoke-free inside residential units and common areas, and prohibit smoking within 25 feet of buildings.

Sue Your Neighbor for Nuisance

Even if the smoker doesn't live under a no-smoking restriction, you might find a court to be sympathetic if you sue for creating a private nuisance (interfering with your ability to use and enjoy your property). This is a common law concept, but your case will be even stronger if a state or local ordinance has declared secondhand smoke to be a nuisance (as discussed in the next section).

Example 1: A Florida court awarded $1,000 to a nonsmoker after she successfully argued that her condominium neighbor's smoking was trespass, a nuisance, and violated her right to quiet enjoyment. The nonsmoker and her family suffered health problems as a result of the smoking and sometimes had to sleep elsewhere when the smoke from the neighboring condominium was particularly dense. (Merrill v. Bosser, No. 05-4239 COCE 53 (Broward County Ct., June 29, 2005).)

Example 2: A jury in Boston decided that a heavy-smoking couple could be evicted from their rented loft, even though smoking was allowed in their lease. The landlord gave them seven days' notice to move out after several neighbors complained about smoke smells wafting into their apartments. The couple fought the eviction by arguing that the smoke from their apartment spread due to faulty air-conditioning systems, but the landlord prevailed. ("Jury Finds Smoking Grounds for Eviction," Boston Globe, June 16, 2005, p. B1.)

Example 3: A Washington, DC Superior Court held that cannabis smoke drifting into a neighbor's home (and making her sick) constitutes a private nuisance. This was even without any ordinance on the books and even though the smoking was for medical reasons. The judge granted an injunction against the smoker. As a side note, this was a self-represented case; the plaintiff won without a lawyer's help. (Ippolito-Shepherd v. Cackett (2023, DC Superior Court).)

The easiest and cheapest way to sue a neighbor for nuisance is in small claims court, where you won't need an attorney. Be aware, however, that the damage amount could be low (each state sets its own limit) and that small claims court judges typically can't order defendants to either do something or to stop doing something (provide "injunctive relief"); they can only award money damages.

Check Your State, County, or City Laws on Nuisance

You can start your research into your state's laws at Nolo's Legal Research Center. Also check your city's website or contact health officials to find out about more local ordinances.

At least one state (Utah) now includes tobacco smoke in its statute defining a private nuisance. Specifically, secondhand smoke is a nuisance in Utah if it drifts into any residential unit from a home or business more than once a week for at least two consecutive weeks, and if it interferes with the neighbor's "comfortable enjoyment of life or property." An annoyed neighbor may sue the smoker directly and may sue the landlord in some cases if the smoker is a renter. (Utah Code Ann. § 78-38-1.)

In California, secondhand tobacco smoke is considered a toxic contaminant by the state's Air Resources Board, and multiple cities and counties have passed laws regulating smoking or declaring it a nuisance, particularly in multi-unit housing.

Some U.S. cities have additionally passed ordinances declaring marijuana smoke that drifts to a neighbor's property to be a legal nuisance. For example, Cotati, California (Ordinance § 9.31.040) says that "a private citizen may bring a legal action to abate secondhand smoke as a nuisance," which provision includes "tobacco smoke, marijuana smoke, and electronic smoking device emissions."

If such ordinances exist in your area, calling local law enforcement could lead to a citation against your neighbors. This too might encourage them to start smoking elsewhere.

For More Information or Help

For the legal and practical information you need to deal with your landlord and other tenants, see Every Tenant's Legal Guide, by Ann O'Connell and Janet Portman (Nolo).

And if you're still running into tough-to-solve difficulties, consider consulting with an attorney with expertise in real estate or neighbor law.