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LawTalk
LawTalk, Attorney
Category: Real Estate Law
Satisfied Customers: 35309
Experience:  I have 30 years legal experience. Additionally, in CA I held a Real Estate Broker's license.
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I live in a condo that has no smoking in common areas. The

Customer Question

I live in a condo that has no smoking in common areas. The people on my floor smoke and the smoke escapes from their unit periodically so when I go in the common area to the elevator or throw out my garbage I inhale the second hand smoke. What can I do about this?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  LawTalk replied 1 year ago.
Good afternoon,
I'm Doug, and I'm very sorry to hear of your situation. My goal is to provide you with excellent service today. I empathize with your situation. My wife has a similar allergy to second hand smoke.
While the state yet lacks the legal ability to prevent people from smoking in their own homes, there are a few Associations that do prohibit smoking in the units---though as you can imagine they are few.
Legally, an association could amend their by-laws and CC&R's to prohibit smoking in all areas of the association---however, doing that after there are already owners/tenants in place who smoke might well lead to an expensive lawsuit against the association, and so few associations are ready to take on such a battle.
The only other potential remedy you might have would be to sue the smokers for private nuisance. A private nuisance is when a property owner does something on their property---even something that is otherwise legal---and yet the result of their action off their property causes a disturbance---generally harm to another.
All states, including Florida, have private nuisance laws that allow you to sue for damages. Here is an article on FL nuisance law:
http://www.celiadeifik.com/private-nuisance-or-trespass/
And here is an article on how to go about bringing a private nuisance action. While this article deals with NY law, the concept is the same in Florida:
http://www.ppgbuffalo.org/wp-content/uploads/2010/06/Private-Nuisance-Users-Guide-1.pdf
You may reply back to me using the Reply link and I will be happy to continue to assist you until I am able to address your concerns, to your satisfaction.
Please remember to rate my service to you so that I can be compensated for helping you.
I wish you and yours the best in 2015,
Doug