How to Deal with a Condominium Neighbor who Smokes

How to Deal with a Condominium Neighbor who Smokes

Bob Dailey McGrath, North, Mullin & Kratz 1602 Dodge Street, #3700 Omaha, NE 68102 rdailey@mcgrathnorth.com (402) 633-6899



HOW TO DEAL WITH A CONDOMINIUM NEIGHBOR WHO SMOKES

What you do if you live in a condominium and your neighbor or somebody in a nearby condominium unit smokes? And you find that the smoking is inconvenient to you, unhealthy or downright dangerous to your health?

The first thing that you need to do is look at your condominium Declaration. If it is an older condominium, this document might be called a Master Deed. See if there is anything in this Declaration (or Master Deed) which prevents a neighbor from smoking in the common areas of a condominium or actually smoking in a condominium unit. You would also want to look at the Bylaws of the condominium Association and any Rules and Regulations passed by the Condominium Association.

However, unless this is a very new condominium, it is very unlikely that there will be any restrictions on smoking in the Declaration, especially smoking within a private condominium unit.

What do you do then?

The next step is to file a complaint with the Board of Directors of the Condominium Association. My experience is that a Condominium Association probably won’t do anything, especially if only 1 Omaha condominium unit owner is complaining. In any event, this article is about what an individual condominium unit owner can do to protect herself or himself, not what entire Condominium Associations should do.

In an earlier legal guide, I mentioned that a typical Omaha Condominium Declaration says:

“No nuisance shall be allowed in or on the Condominium nor shall any use or practice be permitted which is a source of annoyance to the residents or which interferes with the peaceful enjoyment or possession of the Condominium or the Units.”

Is smoking a “nuisance” or an activity which is an annoyance or interferes with the peaceful enjoyment of a condominium unit? As a practical matter, yes. Court decisions however have been inconsistent on this point. In some cases, courts have said that this nuisance clause does not apply to existing smokers. So this is not a guaranty that this would be a winning argument.

In any event, the Board of Directors of the Condominium Association has an obligation to enforce this restriction against all of the condominium unit owners, including smokers. Again however, what to do when the Board refuses to enforce this “nuisance”” restriction?

Very often, a Declaration (or a Master Deed) permits individual condominium unit owners to enforce the restrictions or restrictive covenants contained in a Declaration. It is very ordinary for a Declaration to say something along the lines of this clause from an existing Condominium Declaration:

“Failure to comply with any of the terms of this Declaration or the Bylaws shall be grounds for an action to recover sums due for damages or injunctive relief, or both, and for reimbursement of attorney’s fees, which action shall be maintainable by the Board of Directors on behalf of all of the Owners, or by an aggrieved Owner.”

Therefore, an individual condominium unit owner would be able to bring an action to enforce this “nuisance” clause even if the Board of Directors of the Condominium Association fails to do so. Again, I have to caution you that the law is very unclear on this smoking issue and there is no guarantee that the court will rule that smoking is a prohibited “nuisance”.

 The information in this legal guide is for educational purposes only.  It is not legal advice or a substitute for legal advice by a lawyer.  If you want legal advice, you should contact a lawyer licensed to practice law in Nebraska.

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