How to stop neighbors second hand smoke?
August 26, 2007 3:16 PM   Subscribe

I'm at my ropes end, it's been a year since the new neighbors have moved in and the smoking problem is driving me out of my house. The neighbors are a family living next to me in an apartment, we half share a balcony (that is the condo designed these balconies to be half open to the next apartment with a full vertical partition that extends to the middle of the balcony and a horizontal one that goes the remainder about 2 feet from the floor). Here are the problems:

1. They smoke in their bathroom and the smoke enters my apartment through my bathroom air vent (I couldn't take it anymore, so I taped plastic over the vent).

2. They smoke on the balcony, all the time, they chain smoke. I work from home and apparently so do they, so it's near 16 hours worth of daily smoking. Asking them not to smoke only makes them smoke more. I cant open the balcony door (it goes into my bedroom) anymore since the negative pressure in my apartment starts sucking in all the air that is funneled from their side of the balcony. And my air conditioner vent also faces the balcony from my bedroom so even if I keep the door closed, I still smell the cigarete smoke now and again, especially if I have the fan/AC running.

My condo board just disregards my complaints, saying these people have a right to smoke on their balcony. I've even accused them of badly designing the balconies (the condo is about 3 years old only and I bought it new), to no avail.

I live in NY city. What are my options? Legal and otherwise?
posted by Melqart to Human Relations (36 answers total) 5 users marked this as a favorite
Buy a fan. Put it out on the balcony aimed over the horizontal partition to blow their smoke back onto their side of the balcony? There aren't going to be any legal avenues with regards to "smelling cigarette smoke now and again" as long as its legal for them to smoke on their own balcony.
posted by Justinian at 3:41 PM on August 26, 2007

I remember hearing about laws/building codes to prevent secondhand smoke from wafting through vents - protecting renters. I don't know how/if they apply to condo-owners, but maybe they do.

You might be able to stick a HEPA filter up above your bathroom vent to help out in there.

For the balcony I recommend a fan that isn't annoyingly strong, just provides a little breeze away from your balcony door.

You could also do a three-fan set-up: One in another window away from the smoke (or even in the apt. hallway) drawing fresh air in, one just inside the balcony door, and one outside the balcony door. Have all three pointed in a manner to create a cross-breeze from the window and out onto the balcony. You will get a nice smoke-free breeze. And only one fan just inside the balcony door facing outwards may provide this effect on its own as long as you have another window open somewhere in the apt., depending on the set-up of your apartment.
posted by Eringatang at 3:43 PM on August 26, 2007

They definitely do have a right to smoke on their balcony, as the alternative is to do it inside. It's just a result of living with such close neighbors. Try getting a window A/C unit. They're not too expensive, and far less trouble than neighbors who are willing to do things to purposely tick you off, which will be the result if you keep bringing it up. The answer here is the same as it is for just about any questions about neighbors: be nice, don't complain, bring them cookies, and make the best of it. If you're like me then home needs to be a civil place.
posted by monkeymadness at 3:52 PM on August 26, 2007

Best answer: Melqart - I feel for you, this sounds like a terrible situation. It's unfortunate that you can't legally do much about this, since as far as I am concerned their right to smoke on their balcony comes to an end at the exact moment that their second-hand smoke enters your home and your lungs.

That said, I think the fan is a good idea.
posted by tomorama at 4:14 PM on August 26, 2007 [2 favorites]

It seems like there are three classes of options.

1. Change their behavior. Make it unpleasant for them to smoke on their balcony. Taking legal or extra-legal action is likely to just make an enemy and be counterproductive in the long run.

2. Change the environment. This includes moving, finding ways to modify the partition separating the balcony to block the smoke, taping your vent or employing the fan ideas listed above. I don't believe that window A/C units circulate air from outside by design, so you might want to check the fit in the window.

3. Change your behavior. Be active in your apartment at hours that don't coincide with their smoking on the balcony. Don't work from home for instance. Or work from home but at night or from a coffee shop during the day. Take up smoking to aclimate yourself (though I wouldn't do this). Keep the door closed and dress in a way that's appropriate for an extremely warm apartment.
posted by Jeff Howard at 4:35 PM on August 26, 2007

The negative pressure, is it sucking air from the apartments and into the corridors through the gaps in the door?

You could try getting those foam insulation rolls (~1/2"x1/2"xseveral yards) and make a seal between your door and the doorframe so at least the smoke won't be actively sucked into your apartment when you have the windows open.
posted by porpoise at 4:35 PM on August 26, 2007

I've been in your position, and it really is awful. If multi-family dwellings are poorly designed, and it sounds like yours is, then there really is no escape.

How do you feel about moving somewhere else that doesn't have these air circulation problems? If it doesn't look like the neighbours are going anywhere, moving might be best for your peace of mind. (And even if these people move out, if someone new moves in who also smokes, you're back to square one.) True, moving isn't easy, and you might feel like you're admitting defeat because you're the one who has to change living spaces, but if it lowers your blood pressure and puts you in a smoke-free environment, then it's best in the long run.
posted by hurdy gurdy girl at 5:19 PM on August 26, 2007

Best answer: You could take up smoking. Smoking meats that is. Really delicious smelling ones that they can have none of. And really foul smelling ones that they want none of, including the smell. Though I'd bet there's a good chance there are regulations, or laws, against smokers and the like on your balconies.

Or you could smoke really delicious meats, and invite them over, and maybe create some good will, and perhaps they'll smoke a little less for you.
posted by gauchodaspampas at 5:25 PM on August 26, 2007 [2 favorites]

The bathroom vent fan is designed to suck air out of the bathroom, so try leaving it running 24 X 7 if it isn't too loud. I would think it would stop air from entering through the vent. If you don't ventilate your bathroom you will have other issues - mainly mold and mildew.

I agree with the add a fan to your balcony suggestion. I'd be tempted to get something big and powerful to make a point, but discretion being the better part of valor it would probably be wiser to use something just big enough to get the job done.
posted by COD at 5:45 PM on August 26, 2007

Best answer: I would call an HVCA (heating ventilating air conditioning) engineering firm and hire them for a two hour consulation. It'll cost you some money, obviously, but they'll be able to look at your problem specifically and come up with better solutions than fans on the balcony or taping up the air vents. Basically, it should be possible to solve this by introducing air from a clean source into your condo, and maintaining positive pressure so that no smoke is sucked into through ducts or from the balcony.
posted by beagle at 5:54 PM on August 26, 2007 [4 favorites]

I second the smoking meat option, only, smoke some fish. That stinks. Then again, that just up's the stakes.
posted by maxpower at 6:39 PM on August 26, 2007

Keep asking em to stop! They cant go much more, and the more you annoy them, the more equal the situation is.

I'm not even sure that answer is entirely sarcastic, either
posted by Jacen at 6:58 PM on August 26, 2007

Best answer: What about bringing a nuisance lawsuit against them, and including the condo designers as a co-defendant?

Typically, when a neighbor legally on their own property does something injurious to your health or obviously unreasonable you can bring a lawsuit seeking an injunction (that is, a court order demanding they stop the behavior) on grounds of nuisance. A private nuisance action is hard to bring, but not impossible. Yes, the point is that someone can be legally prohibited from engaging in perfectly legal behavior on their own property, if it is irritating and harmful enough to meet the legal definition of a "nuisance".

A Google for "second hand smoke nuisance lawsuit" brought up quite a lot of information.

The point: it's interesting law given the anti-smoking legal climate in NYC so you might be able to get a like-minded or public interest law firm to bite. In that event, the threat against the condo board would likely spur some kind of ameliatory response. I would exhaust all intrapersonal options with the neighbors first, though, because this will obviously nuke any possibility of borrowing sugar in an emergency or asking them to cat-sit.
posted by bunnycup at 7:08 PM on August 26, 2007 [1 favorite]

(P.S. I am not a lawyer and the above is not legal advice. If you have any interest in the option, seek out real legal advice. I'm not making up my law, but it's not an easy cause of action.)
posted by bunnycup at 7:10 PM on August 26, 2007

(Sorry, I AM a lawyer, but not yours.)
posted by bunnycup at 7:13 PM on August 26, 2007

I do not agree with monkeymadness. Why be nice to people who are obviously dinks? Th OP has the right to clean air, the neighbours can poison themselves if they want, but that's their choice. They can't infringe on the OP's rights.

Melqart, you're probably in luck considering where you live, as bunnycup points out. But the fan system will provide some short-term relief. I would certainly investigate the nuisance angle- and since your mayor is an anti-smoking crusader, perhaps City Hall may be able to help you out here.
posted by solongxenon at 7:28 PM on August 26, 2007 [1 favorite]

For example, here is a case finding that air pollution from dust from a cement plant is an unlawful nuisance in the State of New York, but DECLINING to issue the injunction. However, you'd make the distinction that the injunction failed to issue because of the "commercial disparity" factor. That is, the idea that one aggreived individual could put a commercial business, well, out of business, didn't seem reasonable to the court. Since the "commercial disparity" factor doesn't apply in your case, you might have grounds to argue for an injunction.

Please note, carefully, the source of the case I've cited is a law school exercise. There is likely MUCH more recent, and thus potentially controlling, law. I've only cited the Boomer case as an example of the idea that pollutants, and secondhand smoke is certainly a pollutant, travelling through the air into your apartment is a reasonable potentially actionable tort.
posted by bunnycup at 7:31 PM on August 26, 2007

i think the more you feed into this so-called 'nuisance', the bigger the problem gets.
posted by brandz at 7:49 PM on August 26, 2007

What you need is positive air pressure in your apartment to prevent infiltration from their residence. I am not sure how you go about this--you need a way to bring a constant flow of fresh air into your apartment. I like the idea of bringing in a HVAC expert for a consultation.
posted by LarryC at 7:57 PM on August 26, 2007

2nd-ing Beagle and LarryC:
Positive air-pressure is your best friend. We are having a similar problem with our apartment except it involves solvents to remove paint on the outside of the building.

So, we have a window and fan on the other side of the apartment (the side not being treated) that we open and turn on, thus forcing air 'into' the apartment: with air pressure inside the apartment greater than outside, it pushes air out window and door cracks, keeping fumes out.

It sucks, and I feel for you. The big difference is our situation ends this week, while yours most likely will not. An engineering firm to design a system is a good idea - especially if you work from home, it becomes a business expense.
posted by From Bklyn at 2:02 AM on August 27, 2007

And one more note, possibly a "smoke-eater" could be installed in the ductwork. You might need to do this if, as I assume, you really have no other source of fresh air than the balcony area, ie., you don't have windows on the other side of the building.
posted by beagle at 5:35 AM on August 27, 2007

Response by poster: Thank you all for your suggestions.

I've actually tried the fan approach (w/ a rather stupid infrared motion detector to turn it on; to really make a point, and tickle my Rube Goldberg bone to boot), and it didn't work out too well. The wind currents make the fan unpredictable and actually makes the smoke come in worse sometimes. It was also a medium size standing fan, the larger ones in Home Depot (were I shopped) sounded like helicopters taking off. And that sort of diversion I need to avoid, especially given that they may not work well.

I spoke to an attorney friend and she thinks I can litigate (possibly even the condo itself) but no Lawyer in his right mind would take it without a sizable retainer (including her). She also thinks its a far shot. It's really pathetic that I have to suck in that bad air, and have such dubious legal recourse.

Lastly, I'm so tired being nice to them, I've done that for months on end. These people just dont care. At this point I just want to get even. Now the smoking beef/fish idea is sounding better every time I say it.... hmm food for thought (if I wasn't a vegetarian)
posted by Melqart at 8:20 AM on August 27, 2007

Best answer: Melqart, give NYC Council Member James Gennaro a call. He's the one currently sponsoring a bill to outlaw smoking in any cars in which minors are riding. The bill is being argued this week or last, it's such a current issue to which he seems personally connected - you might be able to get him interested to do something, to write a letter, make a phone call. And then you can write a letter to the condo board letting them know you've referred the matter to NYC government and you respectfully request their cooperation in finding a mutually acceptable solution to the problem.
posted by bunnycup at 10:02 AM on August 27, 2007

This is San Francisco-based, but might have some ideas for you: Secondhand Smoke and Your Home (pdf)

Also, have you tried complaining to your neighbors' landlord? He or she would have more pull, I'd imagine. (Or is that the condo board?)
posted by occhiblu at 10:09 AM on August 27, 2007

This won't help a great deal, but how about a trellis on the divider itself, with a really dense flower or vine growing? It might block the smoke a little bit when you're on the balcony and give you more privacy. Also, maybe some dwarf evergreen type trees over there. I feel your pain. Just about every night somebody a couple of balconies over smokes, and it seems to be sucked right into my apartment. Drives me nuts!
posted by la petite marie at 10:23 AM on August 27, 2007

Entertain yourself by trialling a range of different stenches, odours and funks. Foods, solvents, faeces ect use your imagination. Everybody has at least one smell that they can't fucking stand. You'll know when you're getting closer... Then you will have the various flavors and intensities within that area to experiment with.

Other suggestions are-

Skipping cds, grating radio stations or the same fucked up cd on repeat. Also tappings and vibrations.
Friends with kids.
A yap dog that barks incessantly whenever they go on the balcony.
Or a sensor and recording, the various avenues for application are endless there if you put your mind to it.
Ash or dust to coat everything.
Oh! Beat dusty rugs ect out there - loudly!
Make your side as inhospitable as possible - an onslaught to the senses. Perhaps set up a hobo nest box, build it and they will come.
Some kind of bugs lurking in pot plants.
Any way that your junk could be placed to even possibly get in their way, do that!

Mmm I'll think on it some more and ask around. Also if you can handle it rotting seafood or, the sneaky version, prawn shells and juices. On the occasion in mind a garden with bark was utilized. Whatever you decide to go with will work provided you mix welll ;)

Ahh, I'm slightly envious being a bad neighbor can be endlessly amusing and satisfying!
posted by mu~ha~ha~ha~har at 11:10 AM on August 27, 2007

If you want to sue them, take a bunch of your clothes to the dry cleaners and run up a two or three hundred dollar bill. Save the receipt and take them to small claims court. Have your carpets professionally steam cleaned and sue them to recover the costs. Repeat ad nauseum until they get the message.
posted by mattbucher at 1:15 PM on August 27, 2007 [1 favorite]

On what grounds would you demand reimbursement though? "It's not fair" doesn't cut it in court! No breach of contract (unless the condo rules expressly prohibit smoking which they don't appear to do), no tort (unless you want to try to argue trespass for smoke floating through the air but I don't think that has EVER been successful), and the nuisance would not be adjudicatable in that manner (I believe).

Be really careful, not to be contrarian against what could be a really very neat idea if it were to work, but I don't think you'd succeed in winning reimbursement in small claims court and might then be stuck with a smelly apartment, expensive cleaning bills and small claims filing fees.
posted by bunnycup at 1:34 PM on August 27, 2007

Tripling the need for positive air pressure. It's the only thing that will solve your problems. Don't get the lawyers involved, you and your wallet will regret it. Depending on your condo's policy on renovations, the HVAC consulant is probably better use of your money.

I've seen many residential units that have air outlets located in the main hallways, so that every unit has a small air flow under the door and into the hallway. I don't know why - it might be cheaper, it might be a safety issue (smoke from any apartment will trip the hallway fire detectors), or it might be better than the alternative (stinky hallway smells going to everyone's apartment).

If your building has that setup, you just need to introduce forced air to your apartment and ensure that not too much of it flows into the hallway and there's some left over to leak out your windows and bathroom fan vent. A booster fan installed into your apartment's fresh air supply might work, but you'd need an engineer to make sure that you're not going to introduce even more problems, such as sucking air from someone else's apartment into yours.

HVAC is tricky business, and hard to modify after the fact. Good luck.
posted by anthill at 1:48 PM on August 27, 2007

On what grounds would you demand reimbursement though?

I'd say the cause of action could either be negligence or intentional destruction of property. This site argues that you can sue the property owner.
posted by mattbucher at 1:58 PM on August 27, 2007

Your citation is to a California document that cites no New York law, and thus at most argues that theoretically they believe you should be able to sue or perhaps that you can sue in California. Since tort law (including negligence) and the contract law that would apply here (because it's not UCC) is very state-specific, you'd really have to find New York law on point.

No negligence case - I can't think in my wildest dreams of how you'd make out the elements of a negligence case. The neighbors have no duty to limit the smoking on their porch, or to protect OP from smoke inhalation. I don't know that the condo board has any duty to stop them smoking (absent a regulation or limitation of their property rights inherent in the deed).

Intentional destruction of property - well, again that's an intentional tort but I just don't think it makes out a prima facie case. I just don't think harm inflicted by air particles is going to state a cause of action when there is no devaluation of the property, destruction of the property, etc. At least the complaint raised by OP so far is simply that its uncomfortable, not that its destroyed his property. There's harm here FOR SURE, but not the type of harm (IMO) that the "property damage" torts were meant to address.

Maybe some kind of products liability or defect in planning case against the developer, architect, condo board, for inherently faulty ventilation. But I'm going WAY out on a limb even suggesting that - my gut is that, like the nuisance claim, it would be "new," and complex law, and thus not suitable for small claims court.

But again, if anything, it's a nuisance:
Persons in possession of real property (either land owners or tenants) are entitled to the quiet enjoyment of their lands. If a neighbour interferes with that quiet enjoyment, either by creating smells, sounds, pollution or any other hazard that extends past the boundaries of the property, the affected party may make a claim in nuisance.
Which is a difficult, complicated, rarely successful claim and OP has already investigated that with a lawyer.

Sorry I'm getting so argumentative, this has just become incredibly interesting to me. As a NY lawyer, I would LOVE LOVE LOVE to see something come of this (even though I'm a smoker).
posted by bunnycup at 2:20 PM on August 27, 2007

You win, bunnycup. I am not a lawyer and I'm just making shit up. However, I lived in NYC next to a loud nightclub for two years and I fought them constantly on noise issues.

I would suggest calling 311 in NYC and getting some information from them. You might be able to complain to the Department of Environmental Protection or your local Community Board.
posted by mattbucher at 2:49 PM on August 27, 2007

(I didn't mean to be LIKE THAT, sorry to everyone I've browbeaten).

311 will DEF. help put you in contact with a city agency that might pick up the ball in lieu of having to pay a hefty retainer to a law firm.
posted by bunnycup at 2:59 PM on August 27, 2007

"The wind currents make the fan unpredictable and actually makes the smoke come in worse sometimes."

Yeah, totally, and this is where the suggestion of hiring an engineering firm comes in: Realistically, I don't know that I (personally) would, seems like a lot of hassle, but then again I don't work from home.

(after a bit of typing, looking)
Maybe three years ago for a project in mid-town I used this engineering company: "EMTG 212-268-6465" This was, mind you, a big job but they are/were a small shop suggested to us by one of our contractors. They were inexpensive (certainly relatively) and did great work. Alternatively, you could find an HVAC co to take a look - sometimes their technicians, if they are smart enough and experienced enough, can proved the same details an engineer would. You would be hiring them to provide you with a fresh air system...

Lastly, once, our neighbor left a radio on in a room adjacent (a basement studio, actually, so below) to our bedroom. It was on a rock station (WPLJ? I think), and the regular, only slightly varying thump thump thump of bass kept me up, or just up enough, that by the third night I/we were a little bit crazed. We had looked everywhere for the sound including his place but the radio... I dunno, accoustics... was quiet enough that you couldn't hear it outside of the room it was in...finally we checked there.
posted by From Bklyn at 12:47 AM on August 28, 2007

Response by poster: "This won't help a great deal, but how about a trellis on the divider itself, with a really dense flower or vine growing? It might block the smoke a little bit when you're on the balcony and give you more privacy. posted by la petite marie at 10:23 AM on August 27 "

I'm not sure a trellis or plants will work (poor plants probably will wilt w/ so much carbon monoxide next to them). I did consider "sealing" the outer space on the divider with semi transparent glass/plastic and silicon out to the edge of the balcony... the smoke can still I guess hope around the glass but it may provide a bit of a reprieve. Well lo and behold another tenant thought of it too and put one up about 2 years ago (not for smoke I think, just not to see his neighbor I guess)... he was forced to take it down by the condo board/management co.! They insisted that the opening was part of the condo design and you had no right to modify it and affect the expectations of your neighbor. I couldn't believe it when I heard it. This too me was the last straw in trying to effect any remediation from the board- they were more afraid to be sued by my neighbor for lack of access/view... basically to my balcony than the carcinogens and rank odor coming into my apartment.

I think there is a consensus here forming about the HVAC consultant in order to create positive air pressure in the apartment. I'm going to go ahead and hire a firm to take a look if their not too expensive (maybe up to 300 bucks). I don't have too much hope since all my windows face the same side of the building, adjacent to the balcony, not that there are too many windows... just two. I've actually turned off the AC in my bedroom (embedded next to the door to the balcony) and turned on the living room AC. Guess what... when they smoke... the AC just sucks it in. Now it's just a little better since it gets somewhat filtered through. Still smells though.
posted by Melqart at 10:14 AM on August 28, 2007

I wonder how the condo association would feel if you got this written up in something like the Village Voice? A human-interest piece, but one which would point out that the condo assoc. at [YOUR ADDRESS] doesn't care about your desire for smoke-free air. Couldn't be good for their precious property values, could it?

Ha, another smoker, on your side. To be sure, the situation is unpleasant to your neighbors, although maybe not as bad as for yourself. I think the association/buiilder/architect whatever have an obligation to find a remedy to keep both you and your neighbor happily enjoying their apartments.
posted by Goofyy at 9:50 AM on August 29, 2007

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