Legal / Real estate advice re: smoking neighbor (Boston: apartment complex, leases)

[cmcgill]

I rent an apartment in a brownstone-style building in the city. My neighbors in the adjacent building next door step outside to smoke cigarettes directly below my bedroom / living room windows. The smoke from their cigarettes comes into my apartment. The odor is noticeable with the windows closed, and is pronounced when the windows are cracked. I'm routinely awakened in the middle of the night (2am, 3am) by the smell of smoke.

I have spoken several times with my neighbors -- I explained that the smoke from their cigarettes comes into my windows, and is a hazard to my health. I have asked that they either smoke inside their own unit, or move away from the building entrance to smoke. I have pointed out the irony that they seem not to want smoke in their own home, but by smoking at their doorway, they blow smoke into my home. They have refused to smoke elsewhere, saying that smoking is their lifestyle choice. I explained that second-hand smoke poses a health hazard to me, and they replied that dealing with second-hand smoke is something that comes along with city living. They are entirely apathetic and unresponsive.

Unfortunately, the property manager for my building does not manage the building next door. I've contacted my property manager several times about the matter. He understands that second hand smoke is a hazard to my health and that it prevents me from peaceful enjoyment of my unit. He claims to have contacted my neighbor's PM, asking them to address the problem. He says there is little he can do to control neighbors. I don't know how seriously the PM of the building next door is taking the situation. All I know is that I've been breathing second hand smoke for several months, and I've seen no change in the neighbor's behavior, and no willingness to compromise. (I can't understand why walking 20ft up the sidewalk is such a problem, but they refuse.)

My lease is up in September. I've been in my unit for eight years and do not want to move. I like my apartment, my building, my landlord, my neighbors. I tolerate stomping neighbors above, street noise, etc -- these are things that come with dense city living. But second-hand smoke is a danger to my health.

I feel that it is unfair for me to be forced out of my apartment -- and to take on the cost of moving, of securing a new place to live . . . especially under the current health circumstances -- because of the bad behavior of a neighbor. Yet, I'm unsure what other recourse I have.

So, I write to seek advice from anyone who may know what rights I have under the law. I can't easily afford the expense of a move -- especially in these economically uncertain times. Yet, I also don't want to endanger my long-term health. Any advice is much appreciated.

[Parnassia]

Originally Posted by cmcgill

I rent an apartment in a brownstone-style building in the city. My neighbors in the adjacent building next door step outside to smoke cigarettes directly below my bedroom / living room windows. The smoke from their cigarettes comes into my apartment. The odor is noticeable with the windows closed, and is pronounced when the windows are cracked. I'm routinely awakened in the middle of the night (2am, 3am) by the smell of smoke.

I have spoken several times with my neighbors -- I explained that the smoke from their cigarettes comes into my windows, and is a hazard to my health. I have asked that they either smoke inside their own unit, or move away from the building entrance to smoke. I have pointed out the irony that they seem not to want smoke in their own home, but by smoking at their doorway, they blow smoke into my home. They have refused to smoke elsewhere, saying that smoking is their lifestyle choice. I explained that second-hand smoke poses a health hazard to me, and they replied that dealing with second-hand smoke is something that comes along with city living. They are entirely apathetic and unresponsive.

Unfortunately, the property manager for my building does not manage the building next door. I've contacted my property manager several times about the matter. He understands that second hand smoke is a hazard to my health and that it prevents me from peaceful enjoyment of my unit. He claims to have contacted my neighbor's PM, asking them to address the problem. He says there is little he can do to control neighbors. I don't know how seriously the PM of the building next door is taking the situation. All I know is that I've been breathing second hand smoke for several months, and I've seen no change in the neighbor's behavior, and no willingness to compromise. (I can't understand why walking 20ft up the sidewalk is such a problem, but they refuse.)

My lease is up in September. I've been in my unit for eight years and do not want to move. I like my apartment, my building, my landlord, my neighbors. I tolerate stomping neighbors above, street noise, etc -- these are things that come with dense city living. But second-hand smoke is a danger to my health.

I feel that it is unfair for me to be forced out of my apartment -- and to take on the cost of moving, of securing a new place to live . . . especially under the current health circumstances -- because of the bad behavior of a neighbor. Yet, I'm unsure what other recourse I have.

So, I write to seek advice from anyone who may know what rights I have under the law. I can't easily afford the expense of a move -- especially in these economically uncertain times. Yet, I also don't want to endanger my long-term health. Any advice is much appreciated.

This is just one of the problems living in the city with neighbors. Thousands of people complain about the same thing and always have. You might have some legal recourse if:

1. The neighboring property (including the outdoor areas) is designated a non-smoking zone. The smokers could be evicted because they are violating the property rules.
2. The other building has a no smoking clause in their leases. The smokers could be evicted because they are violating their lease.
3. MA state or Boston city law defines second hand tobacco smoke as a private nuisance or a hazardous material. If so, that means you could sue the smoker directly or sue their landlord. YOU would have to pursue it in court. A quick web search found this:

https://www.nolo.com/legal-encyclope...ades-home.html

Be aware your smoking neighbors could also sue YOU for harassment.

If none of those things apply to your situation, you don't really have legal recourse. You are trying to impose your preferences on someone else. You say you are entitled to peaceful enjoyment of your unit? Well, that street runs both ways. Your neighbors have the same expectations you do; to enjoy their own place and that happens to include smoking there. Much as you don't like it, smoking tobacco is still legal. It isn't even coming from the same building! You say the smoke is bad for your health? Well, its bad for the smoker's health too. They just don't happen to care. You say you can't afford to move? What makes you think your smoking neighbors can?

Probably the easiest thing to try is to modify your own apartment so smoke is less likely to drift into it. There are a few ways to reduce how much gets into your unit. Use an ozone ionizer, a good quality air purifier, or a filtered air conditioner to remove the smoke from your inside air. Run a fan that blows air toward the windows in the direction the smoke comes from. It can change the inside air pressure slightly and that will pull less outside air into the room even if the window is closed. Obviously when the window is cracked use the fan and set it to blow out. Have your windows caulked and have better weatherstripping added to any doors to prevent air leakage.

Other than that, when your lease is up, move to a non-smoking condo or apartment complex that has a good reputation for upholding the bylaws.

[cmcgill]

Thanks for your advice. It's not a no smoking building. I would hope to stop short of suing the tenants or the landord, but I do understand that it is an option.

I understand that the smoking tenant isn't breaking the law by smoking. My only issue is that they choose to smoke directly beneath my windows when there are other places they could easily do so -- including inside their own apartment. We all have a right to choose unhealthy behaviors for ourselves. But, we also have a responsibility to refrain from harming others.

In fact, MA has upheld the right of landlords to evict tenants for putting neighbors at risk with second hand smoke -- no-smoking building or not -- just as a landlord can evict (or decline to renew) a tenant for any other behavior that disturbs other tenants. Because the unit in question abuts mine-- we share walls -- but is technically in a different building, my landlord doesn't have any authority to work with the tenant.

At any rate, thanks for your thoughts.

[reenzz]

You have three choices....

1. Move

2. put up with it

3. Close your window.

[trevor0101]

I'm sorry you're dealing with that. People can be jerks, and that's unfortunately par for the course anywhere. It's true that you probably have the three choices as outlined by reenzz. As you pointed out, smoking does cause annoyance, and health concerns. If I were you, I'd probably just move, and assure that I lived in a place where it's far less likely to be annoyed by someone else's smoking.

[mmyk72]

yep... move. not worth the aggravation.

[hunterseat]

I feel your pain. Add pot smoke to the equation in my case. I have an evaporative (swamp) cooler that pushes air out pretty quickly. It's just a bad situation.