Although I rent in a nonsmoking building, my apartment frequently smells like I’m chain-puffing Marlboros 24/7.
The smell’s sneaking through my vents, permeating the lobby, and wafting into the stairwells. Sometimes it’s even in my closet. Oh, and it’s not just cigarette smoke. Thanks to the recent decriminalization of marijuana in New York City, I’m now suffering through a double dose of at-home secondhand smoke.
What rights does a renter have to a smoke-free home? Curious about what protections are in place, I did some digging and found there’s actually a lot tenants can do. Here are the steps to take if your neighbors’ smoke (cigarettes, weed, or otherwise) is getting on your nerves.
Check if smoking is allowed in your city or state
“For quite some time, smoking cigarettes inside or around public places has been outlawed due to the dangers of secondhand smoke,” says lawyer Robert Pellegrini, president of PK Boston, a firm that specializes in both real estate and cannabis law. “But as far as private complexes go, most cities have smoke-free policies in public housing. Most private associations have smoke-free rules and regulations.”
Nevertheless, anti-smoking laws vary widely from state to state. This is especially true when it comes to marijuana. Currently, 11 states have laws allowing for recreational use of marijuana, and 22 states have decriminalized use but it is still technically illegal. Also, 31 states allow medical marijuana use and 10 states have ruled that marijuana is illegal in any capacity.
Curious where your state stands? To start, do a Google search for “Can you smoke in an apartment building in [your state]?” You can specify cigarette or cannabis as well. Or, peruse your state’s marijuana laws in The Law Dictionary.
Once you have this information, consider what you want to do with it. If you live in a state where, say, smoking marijuana is illegal, you could contact the police.
“If it’s not legal, then the police may get involved upon request,” says Pellegrini.
Clearly, getting your neighbor arrested might make your living quarters uncomfortable in other ways. So, let’s look at some other options.
Check your lease and building bylaws
Your next step should be to read the rules and regulations of your condominium or apartment complex to see if smoking is prohibited.
Most associations or property managers will have at least generally addressed this issue because it could be categorized as a nuisance—defined as something that prevents people from using and enjoying their property. Some examples are playing loud music, incessant dog barking, leaving garbage in the common areas, failing to clean up pet waste, and yes, smoking.
“Most apartments and condos these days will have rules forbidding smoking in or near the building,” says Pellegrini. Plus, “smoking is smoking—same deal regardless if it’s weed or cigarettes—as far as association rules and bylaws go.”
Those trying to hide behind the veil of “medical reasons” for smoking weed will not be protected.
“With all the edibles on the market, there are viable alternatives, so smoking for medical reasons is not an exception to the rules,” says Pellegrini.
Found a line in your lease about smoking being prohibited? Good; read on for next steps. If a no-smoking policy isn’t already in place, then check the building’s bylaws. If it’s not under the “nuisance” section, you could see about getting a nonsmoking edict added.
See if you can identify where the smokers are
Sometimes you know exactly where the smoke is coming from. Other times, you might just know that the building’s second floor reeks on weekends. Jot down details that can help management enforce the rules.
“I would not recommend confronting your neighbors unless maybe you’re friendly with them,” advises Pellegrini.
A better bet is to do a bit of detective work and try to determine how many other tenants feel the way you do.
“There is power in numbers, and you don’t want it to look like you are the only hypersensitive person complaining,” says Pellegrini. “The more neighbors that you can get to agree with you, the better.”
If you’re building a case to present—whether it be to the landlord, homeowners association, management, or a court of law—you want to document how often these smoking violations occur.
“Nuisance is all about disturbing your everyday life. The more you’re disturbed, the more effective your case will be,” says Pellegrini.
You might even wish to get a device to test air quality for smoke saturation to add further data to your complaint.
Speak to your landlord or property manager
Once you have some intel, it’s time to chat with your landlord or property manager.
If you’re a renter, ask what’s being done to enforce any rules and regulations already in place. One thing management should be willing to do is send a letter to all occupants reminding them of any nonsmoking policies. Additionally, if you and other concerned neighbors have identified which apartments/condos are responsible for the smoke issues, you can ask management to send notes to those tenants informing them that they’re in violation of their lease or the building’s bylaws.
If your building doesn’t have anti-smoking regulations in place, you can talk to your landlord/management about the situation. You might mention that such policies may be more effective if written to outlaw “odor” versus someone smoking.
“It could be easier to enforce since you wouldn’t necessarily need to prove that someone was smoking—only that they were causing an odor nuisance,” says Pellegrini.
So let’s say you present all these options to your landlord, and still nothing is done. Pellegrini suggests that your landlord or property manager may not understand the law very well.
“They may have been told that they cannot prohibit consumption. Depending on the laws in your area, that may be the case,” says Pellegrini. “But no matter where you are, they can prohibit a nuisance.”
Dig into last-ditch options
If you get no cooperation from your landlord and are ready to play hardball, here’s another option: Find out if the building is mortgaged and which lender holds the mortgage.
“Most mortgages are federally backed, so you can use this information to put some pressure on the landlord,” explains Pellegrini. “If a federally backed mortgage was used to purchase or refinance the building, then smoking marijuana there is illegal, regardless of the state law.”
One place to look is in the MyHome by Freddie Mac database, which allows you to see if your building has a Freddie Mac loan and therefore certain tenant protections.
Another avenue: If your HOA has no rules and regulations for cigarette smoke, you can always try to file a nuisance claim yourself. But be forewarned, this is a major undertaking.
“Once again, you probably want to try and get a group of people on your side, because it’s going to cost a lot of money, and it will likely burn bridges with the smokers and possibly management,” warns Pellegrini.
If smoke is something you want to avoid when finding a rental in the future, make sure you inquire with your prospective new building whether or not smoking is permitted on the property—and what is done to enforce that. Because when it comes to where you live, you really do deserve to breathe easy.