A Second-Hand Lesson In Dealing With A Smoking Neighbor

By Benny L. Kass, Published: July 18, 2013 | Updated July 19, 2013, 9:40 AM

Second-hand tobacco smoke is not in and of itself a nuisance. That is now the law in Maryland based on a case just handed down by the Maryland Court of Special Appeals.

David Schuman, a shareholder in the Greenbelt Homes Cooperative, claimed that his neighbor’s smoke invaded his apartment, in violation of the cooperative’s rule that no nuisance was permitted.

In the Schuman case, it was shown that the offending smoker had already been prohibited from smoking in his apartment; he was only smoking on his patio. Neighbors had testified at the trial in the lower court that shutting their windows stopped the smoke from coming into their unit.

“All Schuman would have to do to eliminate any offensive odor from the outdoor patio smoking would be to shut his window,” the court said, “and, if need be, run a small fan to clear any smoke that entered his unit.” The trial court found that Schuman did not make any effort to try that “simple solution.” Accordingly, the appellate court upheld the trial court’s ruling that Schuman did not show that the smoke “was a substantial and unreasonable interference with the use and enjoyment of his home.”

Common Law

The court ruled that second-hand smoke is not a “nuisance per se.” And the court further determined that Schuman did not meet the legal standards of what constitutes a “nuisance in fact.”

These are technical, legal distinctions.

Nuisance per se means that the conduct is so objectionable and impacts everyone – such as pollution of the air.

Nuisance in fact is something that may not affect the world, but the plaintiff has met the burden of proof that he was, in fact, injured as a result of the conduct.

The law of nuisance is based on common law. According to legal scholars, the concept was developed based on the theory that a person shall not use his property so as to harm another. The legal dictionaries define it as “that which annoys and disturbs one in possession of his property, rendering its ordinary use physically uncomfortable to him.”

That’s what Schuman claimed when he filed his lawsuit; the smoke impacted his health and interfered with his right – guaranteed by the cooperative legal documents – to peace and quiet enjoyment in his apartment. But he did not have an expert testify that he suffered any significant injury from secondhand smoke.

At the trial, another expert was vague on how far smoke travels before it dissipates. In fact, that expert tested for nicotine in the air of the courthouse – where smoking is prohibited – and the reading was similar to the level he had detected in Schuman’s home.

In this case, the burden of proof was on Schuman to prove actual harm, and not – as the court suggested -“just from an admittedly offensive odor.” Thus, in Schuman’s case, he just did not meet the burden of proof.

It should be pointed out that the cooperative did take steps to resolve the problem. It sealed the cracks between the two units and also hired an industrial hygienist to test the air in Schuman’s unit.

Your Options

If you are in a similar situation with a tobacco-smoking neighbor in your community association, here are some steps you can take:

• Talk with the neighbor. In the Schuman case, the smoker purchased a new air filter, which unfortunately did not work to Schuman’s satisfaction.
• Discuss the situation with your board of directors. More and more associations are enacting rules – or amending their legal documents – to restrict smoking in the common areas.

There is a legal question as to whether a community association can restrict smoking within the unit itself. I believe that if the association’s legal documents – declaration and bylaws in a condominium – are legally amended to impose such a restriction, it will be upheld in any legal challenge.

Case law throughout the country makes it clear that community association owners are bound not only by the rules and regulations that exist at the time they purchase their unit, but also as those documents may be properly amended from time to time.

• Finally, if all else fails, you can bring a lawsuit against the smoker and the association. But learn the lesson of the Schuman case: Make sure you can document actual injury to you and that there are no other reasonable alternatives.

Benny L. Kass is a Washington lawyer. This column is not legal advice and should not be acted upon without obtaining legal counsel. For a free copy of the booklet “A Guide to Settlement on Your New Home,” send a self-addressed stamped envelope to Benny L. Kass, 1050 17th St. NW, Suite 1100, Washington, D.C. 20036.