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Attorney 1
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Category: Real Estate Law
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I have a neighbor in my multi unit dwelling who continues to

Customer Question

I have a neighbor in my multi unit dwelling who continues to smoke cigarettes on their balcony which is within 15 feet of more doors and windows the smoke is coming directly into my home and into my child bedroom. I am ready to file a lawsuit my husband is disabled and I have a sick child and it is becoming more than a nuisance it has become a serious health risk for both of them.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Attorney 1 replied 1 year ago.
Hello, and welcome. I am a licensed attorney and happy to assist. This is a good question about a serious issue, and I'm glad you asked. I have some good news and some not so good news for you, so please be sure to read the entire post. A nuisance lawsuit lies when someone is creating a substantial and unreasonable interference with the use and enjoyment of someone else's property. A court can award damages and order the offending party to stop the nuisance behavior if such an action is successful. Under the circumstances, there is no question that the conduct of your neighbor is creating a serious interference with your use and enjoyment of the property, and it is affecting the health of your family, potentially seriously. Unfortunately, since smoking is a "normal" part of societal life (although I can't stand it myself) the court would not find that the "unreasonable" prong of the test is met and would not find in your favor in a nuisance action, under most circumstances. However, if you live in a non-smoking building, a nuisance lawsuit would be successful because, under the circumstances, smoking, even on the balcony, where the offending substance can affect others, is undeniably unreasonable, even in the eyes of the court. A stretch would be a cause of action for battery, but if your neighbors have other outside areas in which they could smoke and are doing this specifically to cause harm, then a lawsuit for battery might be successful. If none of the above applies, there may still be a solution. The neighbors have a nasty habit, and their intention is likely to satisfy their habit, not to cause harm. Under the circumstances, a calm discussion with your neighbors explaining the problem, and the suggestion that maybe they try smokeless ashtray, could provide relief. If you're friends with your neighbors, this could go even further and you may be able to convince them to use a device that, when they puff out their smoke, it captures the smoke and prevents it from drifting into nearby areas, such as your space and your window. If the neighbors are willing to try either the smokeless ashtray or the capyuring device, it might be a nice gesture to offer to purchase it for them. Chances are this method will be successful, and successful immediately, solving everyone's problem in the process. I hope this helps. If you need additional information or clarification, just let me know and I'll continue providing assistance. If I have addressed your issue and/or pointed you in a positive direction, please let me know that, as well. Also, please remember to leave a positive rating when prompted, as that is the only way attorneys on this site are credited for the help we provide. Good luck! Best,Attorney 1
Expert:  Attorney 1 replied 1 year ago.
Please let me know if there's anything else I can do for you. I'm here to help. Best,Attorney 1