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Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 6016
Experience:  28 years of experience in General Practice, Real Estate Law and Estate Law.
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I live in a townhome in NC. There are 3 units attached and

Customer Question

i live in a townhome in NC. There are 3 units attached and all have back porches. my wife and are 47,50 never smoked. our neighbors just moved in a year ago. they are older and heavy smokers. now that it is warmer they practically live on the porch watching tv n smoking. we cant open doors or go outside without getting ill from the smoke. the smoke even come inside when the doors are closed. we have an hoa which does not address the issue. what are our options.
scott
Submitted: 1 year ago.
Category: Real Estate Law
Customer: replied 1 year ago.
We suffer side effects such as horseness . Sinus issues. Coughing and headaches and an over all feeling ill.
Expert:  Attyadvisor replied 1 year ago.
Welcome and thank you for your question. I will be the professional that will be assisting you.
I understand I could not live with the smoke I have asthma.
The smoking ban laws in North Carolina do not include Condominiums...yet.
"we have an hoa which does not address the issue. what are our options."
That being said are you telling me that the bylaws do not address smoking or that the HOA is unwilling to amend the bylaws to add smoking restirctions?
Customer: replied 1 year ago.
This is a designated townhome community not condo. The Hoa does not address it.
Customer: replied 1 year ago.
It is a constant barrage. They stay up till midnight abs wake up at 5 am hacking and coughing outside and of course smoking.
Customer: replied 1 year ago.
We get ill and sick from it. Approaching them is going to set them off. So if i am going to do that then I need to do it all at once.
Customer: replied 1 year ago.
In the winter time they sit in the garage area and watch tv and smoke. Meaning when we pull up to our door we are inundated with smoke just to get into our house. It's ridiculous.
Expert:  Attyadvisor replied 1 year ago.
I should not have stated condominiums, I should have included all residential housing. My apologies.
You are saying it is not addressed in the governing documents of the HOA. Is that correct?
Customer: replied 1 year ago.
Yea
Expert:  Attyadvisor replied 1 year ago.
Have you tried to discuss the possibility of an amendment with the board?
Customer: replied 1 year ago.
I have not. I am not sure how it will perceived yet. I want to get all my answers and possible actions before I do.
Customer: replied 1 year ago.
We are full time residents. This is a report area. Most on the board do not live here. U fortunately we get a neighbor who chooses to live here full time.
Customer: replied 1 year ago.
Resort area.
Expert:  Attyadvisor replied 1 year ago.
Thank you for the clarification.
You are entitled, by law, to the quiet enjoyment of your property without interference. Based on the information you provided your right to quiet enjoyments has been violated.
You have options. The first is to request an amendment to the bylaws and or file a private nuisance action against the neighbors in court.
The HOA has the power to amend the governing documents. The only issue I see is that your neighbors would want to be grandfathered in because they smoked when the purchased the property and the ban was not in effect.
§ 47F-3-102. Powers of owners' association.
.
(1) Adopt and amend bylaws and rules and regulations;
.
The bylaws MUST set out an amendment process
§ 47F-3-106. Bylaws.
(a) The bylaws of the association shall provide for:
(6) The method of amending the bylaws.
http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/ByChapter/Chapter_47f.html
.
The HOA Board has a fiduciary duty to all owners to act in the best interests of the owners.
http://www.nolo.com/legal-encyclopedia/fiduciary-duties-hoa-board-members.html
Aside from the HOA, based on what you have described, the neighbors smoking has become a nuisance.
“Nuisance is defined as the unlawful and unreasonable interference with the enjoyment of the property of another (in other words, someone creates a condition that is obnoxious to his neighbor). This tort protects the landowner’s right to quiet enjoyment (use) of his property. It is not necessary to have a physical invasion in order to establish the tort of nuisance. Rather, the disturbance is often noises or odors.”
http://www.ncsu.edu/project/are306/lecturenotes/Unit7NNuisance.pdf
“A person injured from private nuisance can make a claim for either damages or injunctive relief or for both . Accordingly, remedies available for nuisance under law include:
• damages; or
• injunctive relief; or
• a combination of both damages and injunctive relief for separate harms alleged.”
.
http://nuisances.uslegal.com/remedies-and-procedure/#sthash.qGA1ekKK.dpuf
A private nuisance falls under tort law and you would have a cause of action to file a lawsuit against the neighbors for damages and for an injunction wherein the court orders them to cease smoking in the proximity of your property.
Where are you located so I can provide a link for an attorney in your area that provides free consultations?
Customer: replied 1 year ago.
I live in Henrico North Carolina. Lake Gaston.
Expert:  Attyadvisor replied 1 year ago.
http://lawyers.findlaw.com/lawyer/firm/real-estate-law/henrico/north-carolina
http://bobholzlaw.com/2014/04/07/nuisance-in-north-carolina/
The State Bar Association can refer reputable attorneys to you at http://www.ncbar.org/members/lawyer-referral-service/
I hope the information I provided was helpful.
Please do not hesitate to ask me any additional questions that you may have with regard to this matter.
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