Neighbor Law

 

• 1Homeowners: Right to Views
• 2Neighbor Disputes Over Water Damage
• 3Understanding HOA and CC&Rs
• 4Home Improvement: How to Avoid Paying Twice
• 5Rural Neighbors and the Right to Farm
• 6When Secondhand Smoke Invades Your Home
• 7Noise FAQ
• 8Fences FAQ
• 9Trees FAQ
• 10Boundaries FAQ
• 11Helpful Books & Resources by Nolo

[top]Homeowners: Right to Views

Contrary to popular belief, most homeowners do not have a right to their view.

Generally, homeowners have no right to a view (or light or air), unless it has been granted in writing by a local ordinance or subdivision rule. The exception to this general rule is that someone may not deliberately and maliciously block another's view with a structure that has no reasonable use to the owner.

View Ordinances

A few cities that overlook the ocean or other desirable vistas have adopted view ordinances. These laws protect a property owner from having his view obstructed by growing trees. They don't cover buildings or other structures that block views.

Generally the ordinances allow someone who has lost a view to sue the tree owner for a court order requiring him to restore the view. A neighbor who wants to sue must first approach the tree owner and request that the tree be cut back. The complaining person usually bears the cost of trimming or topping, unless the tree was planted after the law became effective or the owner refuses to cooperate.

Some view ordinances contain extensive limitations that take most of the teeth out of them. Some examples:

• Certain species of trees may be exempt, especially if they grew naturally.
• A neighbor may be allowed to complain only if the tree is within a certain distance from his or her property.
• Trees on city property may be exempt.

See How to Find Local Ordinances to locate your city's laws and policies.


Other Ordinances

If, like most cities, your city doesn't have a view ordinance, you might find help from other local laws.
Here are some laws that may help restore your view:

Fence height limits. If a fence is blocking your view, it may be in violation of a local law. Commonly, local laws limit man-made fences in back yards to six feet high and in front yards to three or four feet. Height restrictions may also apply to natural fences, such as hedges. For more information, see Neighbor Disputes Over Fences.

Tree laws. Certain species of trees may be prohibited from being grown -- for example, trees that cause allergies or tend to harm other plants. Laws may also forbid trees that are too close to a street (especially an intersection), to power lines, or even to an airport. For more information, see Neighbor Disputes Over Trees.

Zoning laws. Local zoning or planning regulations control the size, location, and uses of buildings. In a single-family area, buildings are usually limited to 30 or 35 feet high. Zoning laws also usually require a certain "setback," or distance between a structure and the boundary lines. They also limit how much of a lot can be occupied by a structure. For instance, many suburban cities limit a dwelling to 40% to 60% of the property.


Subdivision Rules

Often, residents of subdivisions and planned unit developments are subject to a detailed set of rules called covenants, conditions, and restrictions (CC&Rs). They regulate most matters that could concern a neighbor, including trees and views. For example, a rule may state that trees can't obstruct the view from another lot, or simply limit tree height to 15 feet. If someone violates the restrictions, the homeowners' association may apply pressure (for example, removing the privilege of using a swimming pool) or even sue. A lawsuit is costly and time-consuming, however, and the association may not want to sue except for serious violations of the rules.


How to Approach a View Problem

Before you approach the owner of a tree that has grown to block your view, answer these questions:

• What is the least destructive action that could be taken to restore your view? Maybe the owner will agree to limited and careful pruning.
• How much will it cost to trim the tree(s)? Be ready to pay for it.
• Which part of the tree is causing view problems for you -- one limb, the top, one side of it?
• Does the tree affect the view of other neighbors? If it does, get them to approach the tree owner with you. Trimming costs may be divided among you.

Before You Pay for Property With a View

First, ask the property owner or the city planning and zoning office if the property is protected by a view ordinance. (See How to Find Local Ordinances if you want to do your own research.) Then check with the real estate agent to see if neighbors are subject to restrictions that would protect your view. Also, if the property is in a planned unit development, find out whether a homeowners' association actively enforces the restrictions.

Check local zoning laws for any property that might affect you. Could the neighbor down the hill add a second-story addition?

Finally, look very closely from the property to see which trees might later obstruct your view. Then go introduce yourself to their owners and explain your concerns. A neighbor who also has a view will probably understand your concern. If someone is unfriendly and uncooperative, you stand warned.


Next Steps

For more information on your rights and taking a neighbor to small claims court, see Neighbor Law: Fences, Trees, Boundaries & Noise, by Cora Jordan (Nolo).

Copyright © 2007 Nolo

Nolo is the nation's oldest and most respected provider of legal information for consumers and small businesses. Since 1971, Nolo has offered affordable, plain-English books, forms and software on a wide range of legal issues, including wills, estate planning, retirement, elder care, personal finance, taxes, housing, real estate, divorce and child custody. For more information visit the Nolo's website at Nolo: Law Books, Legal Forms and Legal Software

[top]Neighbor Disputes Over Water Damage

Flooding, surface runoff, and even leaking sprinklers can spark disputes between neighbors.

When water causes property damage -- flooded basements, collapsing retaining walls, or soggy gardens, for example -- feuds between neighbors often result. But the legal issues can be as muddy as the mess in your backyard.

Surface Water Runoff and Flooding
As a general rule, a neighbor is not liable for harm caused by the natural conditions of land. If the land lies in such a way that a particular amount of water is dumped onto your backyard every year from rain running off your next-door neighbor's property, it's not legally your neighbor's fault. But what if your neighbor landscapes his property so that the amount of water running onto your yard doubles every year? Your neighbor would say that the change is still caused by the naturally occurring rain, not his landscaping. But you would probably prefer to take your neighbor's action into account. It turns out that three different rules of liability govern situations like this.

The reasonableness rule. In a majority of states, when one neighbor alters the land and damage occurs to another, the neighbor is liable for the damage if the alteration was "unreasonable." If you sue a neighbor over damage you've suffered, judges will want proof that the neighbor did something unreasonable that altered the natural condition and caused your harm.

What Is Reasonable?

What is reasonable is decided by the courts on a case-by-case basis. In some cases, courts have found gutters and downspouts that send rainwater onto a neighbor's property to be "unreasonable." To determine if something is reasonable, a court may look at the following factors:

• the nature and importance of any improvements that were made by the culvert
• whether or not the damage was reasonably foreseeable by the ones who made the changes, and
• the extent of damage compared to the value of any improvements.

(Rodrigues v. State, 472 P.2d 509 (Hawaii 1970).)

The "common enemy" rule: Lower landowners beware. In the past, many courts treated excessive rainwater as a "common enemy," damaging property at random. Under this theory, you were expected to take measures to protect your own property from water coursing across the land. Even if one neighbor who lived on higher ground diverted water to prevent flooding and deposited it on you, you were expected to protect yourself from the extra water.

Fortunately for lower landowners, the handful of states that still follow the common enemy rule -- including Montana, New York, and the District of Columbia -- have modified it. These states allow a property owner to divert vagrant surface water only if the work is not unusual or extraordinary and if the property owner uses reasonable care to avoid damaging adjoining property.

The "civil law" rule: Upper landowners beware. A number of states follow a rule which is, in theory, the opposite of the common enemy rule. The civil law rule holds that if a person alters the natural flow of surface waters in any way that harms the use and enjoyment of another property, that person will be liable for that harm. Unlike the common enemy rule, which requires lower landowners to fend for themselves, the civil law rule holds upper landowners liable for any detrimental changes in runoff patterns.

Like the common enemy rule, however, states no longer apply this rule in its strictest form. States have developed modifications and exceptions and now often judge the behavior of both parties before saddling the upper landowner with the bill. California, for example, expects that both parties will act reasonably, which includes the duty of the lower landowner to take protective steps.


Water Damage Caused by Carelessness

If your neighbor acts unreasonably or carelessly with water on his own property in a way that causes water damage to your property, you can sue for compensation for your losses and also ask the court to order the neighbor to stop the action.

Common culprits of this type of water damage include garden hoses or sprinklers left running too long and water pipes that get clogged, get old, leak, crack, or freeze. Owners are responsible for their pipes and for damage they may cause, even if the pipe just wears out or freezes in cold weather. Tree roots, including roots from neighboring property, can also damage pipes. Just as property owners are responsible for damage caused by their broken pipes, tree owners may be responsible for damage caused to another’s property by their tree's branches or roots. (For more information, see Neighbor Disputes Over Trees.)


What the Neighbor at Fault Must Pay For

If a neighbor is legally responsible for water damage you suffer, you may be entitled to any or all of the following:

• compensation for cost of repairs and replacements
• compensation for expenses such as having to stay at a motel
• reimbursement for medical expenses
• compensation for mental distress, if you have suffered an underlying physical injury
• punitive damages, if a neighbor acted maliciously.

Judges also frequently order problems to be fixed if fixing them would be easy and inexpensive. Replacing a downspout, clearing away debris, or cleaning out a drain creates very little burden on a property owner. Judges are less likely to order someone to remove a retaining wall, relandscape property, or redo a culvert.


Homeowners' Insurance

Insurance in water damage cases is tricky. If the water comes into your home from an inside source -- say, from a pipe in the townhouse next door -- your ordinary homeowners' insurance should come into play. Contact your agent; your company may pay for your damage and then go after whoever caused it for repayment.

However, when the damage comes from outside rising water, you may need flood insurance, even if your neighbor's action caused the problem. If the problem was caused at least in part by a neighbor, your neighbor's company may well pay you directly. The neighbor's insurance company might also tell your neighbor to correct the problem -- or risk cancellation of the insurance policy.


Next Steps

1. Research your state's water laws by searching the statutes for terms like "water," "flooding," or "surface runoff." Start your research at Nolo's Legal Research Center.

2. If you still have questions about water damage and your rights against a neighbor, purchase Neighbor Law: Fences, Trees, Boundaries & Noise, by attorney Cora Jordan (Nolo).

Copyright © 2007 Nolo

Nolo is the nation's oldest and most respected provider of legal information for consumers and small businesses. Since 1971, Nolo has offered affordable, plain-English books, forms and software on a wide range of legal issues, including wills, estate planning, retirement, elder care, personal finance, taxes, housing, real estate, divorce and child custody. For more information visit the Nolo's website at Nolo: Law Books, Legal Forms and Legal Software

[top]Understanding HOA and CC&Rs

When you buy a house in a new subdivision or planned unit development, you may be subject to a host of rules and regulations.

When you buy a home in a new subdivision, common interest development (CID), planned unit development (PUD), or co-op, chances are good that you also automatically become a member of an exclusive club -- the homeowners' association. The club's members include all the people who own homes in the same development.

The homeowners' association will probably exercise a lot of control over how you use your property.


CC&Rs

The transfer deeds to houses in new developments almost always include limitations on how the property can be used. Usually these limitations -- called covenants, conditions, and restrictions (CC&Rs) -- put decision-making rights into the hands of the homeowners' association.

Some associations enforce every rule with the enthusiasm of a military drill sergeant; others are run in a more relaxed way. Most associations try to make decisions that will enhance the value of the houses.

Make sure the CC&Rs are compatible with your lifestyle. CC&Rs commonly limit the color or colors you can paint your house (often brown or gray), the color of the curtains or blinds visible from the street (usually white), and even the type of front yard landscaping you can do.

Some CC&Rs go on to require that garages facing the street be kept neat, insist that laundry be dried indoors rather than hung on a line, prohibit basketball hoops in the driveway or front yard, and prohibit parking RVs or boats in the driveway. See the list below for more examples of the excruciating detail with which many homeowners' associations regulate members' everyday lives.

Read the CC&Rs carefully before you buy, and if you don't understand something, ask for more information, and seek legal advice if necessary.

Once you've moved in, getting relief from overly restrictive CC&Rs isn't easy. You'll likely have to submit an application (with fee) for a variance, get your neighbors' permission, and possibly go through a formal hearing. And if you want to make a structural change to your house, such as building a fence or adding a room, you'll likely need formal permission from the association (on top of having to comply with city zoning rules).


Maintenance Fees

Homeowners' associations can usually require members to pay fees for common property maintenance. The fees can run particularly high if the development has a pool, golf course, or other recreational facility. Many homeowners' associations let their boards raise regular assessments up to 20% per year and levy additional special assessments with no membership vote for capital improvements like a new roof.

If you're on a tight budget, check the homeowners' association membership fee and how easy it is for the board to increase the amount. Also, if parts of the development have been occupied for awhile, attend a homeowners' association meeting and talk with the officers about financing and other issues of concern.

What Homeowners' Associations May Regulate (not an exhaustive list)

• shingles and exterior paint
• fences and hedges
• trees, lawns, and weeds
• pools
• swingsets and basketball hoops
• garages and sheds
• mailboxes
• clotheslines and garbage cans
• outdoor lights and TV antennas
• window coverings and wreaths
• home businesses
• pets (size or even acceptability), and
• noises and obstructions of views.

See also... How to Buy a House in California by Attorney Ralph Warner, Ira Serkes & George Devine, California Real Estate Broker.

Copyright © 2007 Nolo

Nolo is the nation's oldest and most respected provider of legal information for consumers and small businesses. Since 1971, Nolo has offered affordable, plain-English books, forms and software on a wide range of legal issues, including wills, estate planning, retirement, elder care, personal finance, taxes, housing, real estate, divorce and child custody. For more information visit the Nolo's website at Nolo: Law Books, Legal Forms and Legal Software

[top]Home Improvement: How to Avoid Paying Twice

[n]Protect yourself from mechanic's liens if your contractor fails to pay subcontractors or suppliers.[/b]

All Kate and Peter wanted to do was remodel their ancient kitchen and build on a family room. They saved and borrowed, got their permits, and hired a contractor. The construction was over after just five dusty months, but the legal headaches were just beginning.

It turned out that the contractor hadn't paid the lumberyard thousands of dollars for the lumber, doors, and windows used in the new family room. The lumberyard recorded a lien on Kate and Peter's house and threatened to file a lawsuit to force the sale of the house. Kate and Peter had already paid the contractor and had no money left over to pay again.

Suddenly they were faced with the possibility of losing the house they'd worked so hard to improve. Kate and Peter were blindsided by what's known as a mechanic’s lien. A mechanic’s lien has nothing to do with mechanics in the usual sense. It's a legal claim against property being improved, and it can be filed by anyone who provides materials or does work on the project and doesn't get paid. The property itself becomes responsible for the debt, and the people who are owed money can force its sale at auction if something isn't worked out.


The Rationale of Mechanic's Liens

Most homeowners, like Kate and Peter, are shocked when they find out that they might still end up owing laborers, carpenters, electricians, materials suppliers, or equipment lessors, even if they pay the contractor in full. But that's the law. The whole point of the mechanic’s lien procedure is to make the improved property the ultimate guarantor of payment for all contributors to the project. It dramatically turns the economic tables by shifting the burden of proof on the question of payment from workers and suppliers to the property owners themselves.

Basically, state law is more concerned about those who provide labor or materials to an improvement project without getting paid than it is about the possibility of the owner having to pay twice for the same work. After all, the owner can turn around and sue the contractor (or subcontractor or supplier) to recover the funds. But that's another story.


How They Work

Here, generally, is how mechanic’s liens work. First, a contributor (a supplier or subcontractor) who does not contract directly with the homeowner must provide the homeowner with fair notice that describes the goods or services that are being contributed. The notice must typically be delivered within 20-30 days of when the goods and services were first contributed.

A 20-Day Notice Is Not a Lien

You'll probably receive notices from suppliers and subcontractors that contract with the general contractor to work on your house. This notice is not a lien; it is an informational notice that's useful to you because it gives you contact information for subcontractors and suppliers so you can check in with them at the end of the construction process to make sure they've been paid.

If the contributor isn't paid after work is begun or the materials are supplied, then the contributor files a document called a "claim of mechanic’s lien" at the county recorder's office for the county where the real estate is located. The contributor then has a period of time -- typically between 60 days and six months -- in which he or she can either work out the payment problem or file an action against the owner to enforce the lien, which may ultimately lead to the property being sold at auction. If the enforcement action isn't filed by the statutory deadline, the lien becomes invalid.

As it turns out, mechanic’s lien enforcement lawsuits are seldom filed within the mandatory period, which should mean that the lien has no further effect. Even so, an old lien on a property can negatively impact the owner’s ability to sell the property because many title insurance companies will refuse to clear title when the property is sold unless the lien is affirmatively removed, either by a release from the lien claimant or by court order. Fortunately, in most states, getting a court order is simple and straightforward when it is clear that the mechanic’s lien claimant blew the enforcement action filing deadline.


Heading Off Problems

There are some steps that an owner can take -- both before and during an improvement project -- to protect against this type of horror show. The main idea is to make sure that everyone is paid. One approach is to not rely on the general contractor to pay off the subcontractors and materials suppliers. Instead, the owner can write a number of checks, each check being jointly made out to the general contractor and to a particular subcontractor or to a subcontractor and a materials provider. The idea here is that the check may be cashed only if the ultimate beneficiary endorses it, which will help assure payment and eliminate the risk of a mechanic’s lien. This is a common procedure, especially near or at the very end of a project. In California, see A Homeowner's Guide to Preventing Mechanic's Liens at Guides and Pamphlets.

Direct payments may not be a good idea. Sometimes a contractor who runs short of cash at the end will ask the owner to pay the last accounts directly (getting receipts, of course) and deduct them from the contractor's final check. You might be all right paying subcontractors and suppliers directly, but not the contractor's own employees: You don't want to look like an employer yourself, and you don't want to interfere with the contractor's special responsibilities, such as withholding income taxes and paying insurance and Social Security.

Another approach is to ask the contractor to get lien waivers from everyone who the contractor is responsible for paying. In California and many other states, a contractor must provide a waiver for all work for which the contractor has been paid (in the absence of a performance or similar bond), before accepting any further payment from the owner for additional work. In some states, neither the contractor nor the subcontractor may "waive" his or her mechanic's lien rights until payment is actually made, but in other states a waiver is permitted.

It helps to be organized. You should collect all papers on your project in one file, including any written notices of goods or services provided by contributing suppliers or subcontractors. Before you write the contractor that one final check after the project is finished and passes official inspection, it's only prudent to check in with anyone who sent you one of those notices. You might also want to check in with the last workers and subcontractors, even if they haven't sent you any notices yet (especially if they still have time to do so). Then you'll know which waivers to look for at your last meeting with the contractor.

See also... Nolo's Encyclopedia of Everyday Law: Answers to Your Most Frequently Asked Legal Questions by Shae Irving, J.D. & Nolo.

Copyright © 2007 Nolo

Nolo is the nation's oldest and most respected provider of legal information for consumers and small businesses. Since 1971, Nolo has offered affordable, plain-English books, forms and software on a wide range of legal issues, including wills, estate planning, retirement, elder care, personal finance, taxes, housing, real estate, divorce and child custody. For more information visit the Nolo's website at Nolo: Law Books, Legal Forms and Legal Software

[top]Rural Neighbors and the Right to Farm

Before you build your dream house in the country, thoroughly investigate the surroundings.

During the last several decades, more and more city people have migrated to rural areas to pursue their modern American dreams. They seek a peaceful place in the country, away from the noise and crime of cities. Many choose homes in modest (or not so modest) subdivisions that press into formerly agricultural lands.

This intrusion of urban life into rural life results in an inevitable conflict. How surprised some neighbors are to wake up one spring morning to roaring machinery, buzzing flies, the stench of manure and a mist of pesticides in the air. And how angry many become when they learn that they can't do anything about it.


The Legal 'Right to Farm'

States now give farmers a basic "right to farm" without the fear of lawsuits brought by offended neighbors. As one judge remarked while dismissing a lawsuit against a hog farmer, "pork production generates odors which cannot be prevented, and so long as the human race consumes pork, someone must tolerate the smell."

Before the right-to-farm laws were enacted (most of them in the 1980s), courts shut down many a farmer's operation because it was a nuisance to the neighbors. For example, a group of annoyed neighbors, whose homes had sprung up around a Massachusetts hog farm, sued and closed it in 1963.

Some judges tried to strike a middle ground and ended up applying restrictions that would let the farming operation continue. A Florida court, for example, allowed a hog farm to stay in business but limited how many hogs the farmer could have. The judge also issued instructions on how to store and feed the garbage the hogs were accustomed to eating.

In another case, retirees at Sun City in Arizona discovered that they had traded their frigid climates for warm breezes laced with the odor of a cattle feedlot. A resulting lawsuit closed down the feedlot, but the judge ordered the developer of the community to pay the cost of relocating the cattle operation.

The right-to-farm laws take judges out of the farm management business and protect farmers from the nuisance laws that apply to ordinary neighbors. Every state in the country has passed a right-to-farm law.

North Carolina's law is typical. It declares that an agricultural operation which has existed for a year without being a nuisance is presumed not to be a nuisance even when new neighbors move in. If the farm operations are conducted in a reasonable manner, the new neighbors can't legally complain.

Several states list specific annoyances that are not considered a legal nuisance to neighbors. The lists include odor, noise, dust and the use of pesticides -- the very conditions which, without the laws, could lead to a lawsuit by a neighbor.

Right-to-farm laws do not give farmers complete freedom to do as they please. Farmers must operate in a legal and reasonable manner to be eligible for the law's protection.

Some states -- New York, for example -- do not allow a protected farming operation to undergo a large increase in size. Many don't allow farmers to substantially change what they are doing if they are to remain protected under the law.

Counties in some states have also adopted their ownright-to-farm laws. Some of them include a mediation or arbitration procedure to handle neighbor complaints.


Sniff Before You Leap

Before you build your dream house in the country, thoroughly investigate the surroundings. That lovely wooded hillside you see from your window may be all that stands between you and a cattle feedlot. If all is well when you visit in February, remember that the scene may look (and smell) quite different in the heat of August. Do not assume because a new subdivision will be large,beautiful and expensive, farming operations may not be a problem. Use your head and do some checking on your own.

If you buy property that someone is already living in, the seller may be required to reveal to you any conditions that may create an annoyance. California, for example, requires sellers, rural or urban, to give buyers disclosure forms that list any neighboring problems, including noise, odors and dust. A few counties in California that have adopted local right-to-farm laws now also require sellers to disclose facts about nearby farming operations.

Laws requiring developers to disclose the existence of protected neighboring farm operations cannot be far behind.

You can find and read both state laws and county ordinances in a county law library or on the Internet. For help with legal research, see Statutes and Cases.

If You Need Help

Most suburbanites are not well versed in standard farming practices. But if you suspect that an operation is outside the law's protection, you may have to determine what is "normal" farming practice. You'll want help from someone who understands the applicable restrictions and the definition of normal farming practice for your area.

The U.S. Department of Agriculture issues regulations pertaining to different types of farming, as do state Commissioners of Agriculture.

Many states have county farm agents who may be able to help. They know about customary farming practices, and may also be able to tell you about local mediation or arbitration services that have been set up to resolve these disputes.

Also try the local or state Health Department and the State Department of Agriculture. These agencies may investigate and solve the problem for you, especially if many neighbors complain at the same time. The office responsible for inspecting or licensing a particular kind of operation -- a dairy farm, for instance -- should want to know about possible substandard practices and may take action against the farmer.

See also... Neighbor Law: Fences, Trees, Boundaries & Noise by Attorney Cora Jordan.

Copyright © 2007 Nolo

Nolo is the nation's oldest and most respected provider of legal information for consumers and small businesses. Since 1971, Nolo has offered affordable, plain-English books, forms and software on a wide range of legal issues, including wills, estate planning, retirement, elder care, personal finance, taxes, housing, real estate, divorce and child custody. For more information visit the Nolo's website at Nolo: Law Books, Legal Forms and Legal Software

[top]When Secondhand Smoke Invades Your Home

Homeowners and renters can take action against cigarette-smoking neighbors.

Non-smoking laws in public places have swept the nation, but until recently, if the smoke wafting into your house, condominium, or apartment from your neighbor’s cigarette bothered you, all you could do was move out. The situation is changing, however, and non-smokers bothered by their neighbors’ smoking may find that they can now take action.


Enforce a No-Smoking Lease

If the smoke that disturbs you comes from someone who rents, find out if the rental agreement contains a no-smoking clause; these clauses are becoming more common. If it does, then the tenant is violating the lease and you may be able to convince the landlord to enforce the clause (that is, tell the smoker to stop or move out). If the smoker refuses to honor the clause, it's up to the landlord to take the next step (evict the smoker). When a lot of neighbors complain, the landlord may be more motivated to take action.

Even if the lease does not prohibit smoking, the landlord may have grounds to evict the smoking tenant if the cigarette smoke is truly troublesome and interferes with your ability to enjoy living in your own apartment unit. All tenants enjoy the right to "quiet enjoyment," a quaint-sounding legal principle that gives tenants the right to occupy their apartments in peace and also imposes upon them the responsibility of not disturbing their neighbors. (Some leases and rental agreements include a clause that spells out this principle, but it applies to everyone even if it's not in the rental documents.)

It's the landlord's job to enforce both sides of this bargain. If the neighbor’s smoking makes your own apartment reek of cigarettes to a degree that seriously disturbs you on a daily basis, the smoking tenant is probably interfering with your right to quiet enjoyment. Again, you'll have to convince the landlord to take action, by asking the smoker to stop or face eviction. For more information on evictions, see How Evictions Work: Rules for Landlords and Property Managers.


Enforce a No-Smoking CC&R

If the troublesome smoker lives in a planned development or a condominium with covenants, conditions, and restrictions ("CC&Rs") prohibiting smoking, then either you or the homeowners’ association may take legal action against the smoker. See Understanding Homeowners' Associations & CC&Rs.


Sue Your Neighbor

Even if the smoker doesn’t live under a no-smoking restriction, you may find a court to be sympathetic if you sue the smoker for creating a private nuisance (interfering with your ability to use and enjoy your property).

Example 1: A Florida court awarded $1,000 to a nonsmoker after she successfully argued that her condominium neighbor’s smoking was trespass, a nuisance, and violated her right to quiet enjoyment. The nonsmoker and her family suffered health problems as a result of the smoking and sometimes had to sleep elsewhere when the smoke from the neighboring condominium was particularly dense. (Merrill v. Bosser, No. 05-4239 COCE 53 (Broward County Ct., June 29, 2005).)

Example 2: A jury in Boston decided that a heavy-smoking couple could be evicted from their rented loft, even though smoking was allowed in their lease. The landlord gave them seven days’ notice to move out after several neighbors complained about smoke smells wafting into their apartments. The couple fought the eviction by arguing that the smoke from their apartment spread due to faulty air-conditioning systems, but the landlord prevailed. (“Jury Finds Smoking Grounds for Eviction,” Boston Globe, June 16, 2005, p. B1.)


Check Your State's Laws

At least one state -- Utah -- now includes tobacco smoke in its statute defining a private nuisance. Specifically, second-hand smoke is a nuisance in Utah if it drifts into any residential unit from a home or business more than once a week for at least two consecutive weeks, and if it interferes with the neighbor's "comfortable enjoyment of life or property." The protection doesn't apply if the neighbor signed a lease, restrictive covenant, or purchase agreement waiving his right to sue a neighbor for causing a nuisance by smoking. Under Utah's law, an annoyed neighbor may sue the smoker directly and may sue the landlord in some cases if the smoker is a renter. (Utah Code Ann. § 78-38-1.)

In California, second-hand smoke is considered a toxic contaminant by the state's Air Resources Board.

Start your research into your state's laws at Nolo's Legal Research Center.

See also... Every Landlord's Complete Kit

Copyright © 2007 Nolo

Nolo is the nation's oldest and most respected provider of legal information for consumers and small businesses. Since 1971, Nolo has offered affordable, plain-English books, forms and software on a wide range of legal issues, including wills, estate planning, retirement, elder care, personal finance, taxes, housing, real estate, divorce and child custody. For more information visit the Nolo's website at Nolo: Law Books, Legal Forms and Legal Software

[top]Noise FAQ

Answers to your questions about noisy neighbors.

» Are noisy neighbors breaking the law?

» How should I approach my neighbor about a noise problem?

» Can I sue a noisy neighbor?

» Isn't my landlord supposed to keep noisy tenants quiet?

» My neighbor's dog barks all the time, and it's driving me crazy. What can I do?

[top]Fences FAQ

Do good fences really make good neighbors? These frequently asked questions may help you decide.

» How high can I build a fence on my property?

» My neighbor is building a fence that violates the local fence law, but nothing's happening. How can I get the law enforced?

» My neighbor's fence is hideous. Can I do anything about it?

» The fence on the line between my land and my neighbor's is in bad shape. Can I fix it or tear it down?

» Where can I find more information about fences?

[top]Trees FAQ

Frequently asked questions to help you deal with troublesome trees.

» Can I trim the branches of the neighbor's tree that hang over my yard?

» Most of a big oak tree hangs over my yard, but the trunk is on the neighbor's property. Who owns the tree?

» My neighbor dug up his yard, and in the process killed a tree that's just on my side of the property line. Am I entitled to compensation for the tree?

» My neighbor's tree looks like it's going to fall on my house any day now. What should I do?

» Do I have to compensate my neighbors for damage to their septic tank caused by the spreading roots of a tree on my land?

» If I have more questions about the trees on my property or my neighbor's property, what should I do next?

[top]Boundaries FAQ

Answers to your frequently asked questions about property lines and surveys.

» How can I find the exact boundaries of my property?

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[top]Helpful Books & Resources by Nolo

Nolo Website: Neighbor & Home-Related Disputes

Nolo is the nation's oldest and most respected provider of legal information for consumers and small businesses. Since 1971, Nolo has offered affordable, plain-English books, forms and software on a wide range of legal issues, including wills, estate planning, retirement, elder care, personal finance, taxes, housing, real estate, divorce and child custody. For more information visit the Nolo's website at Nolo: Law Books, Legal Forms and Legal Software

Nolo Book: Neighbor Law...
Neighbor Law: Fences, Trees, Boundaries & Noise
by Attorney Cora Jordan

"This classic book, which keeps getting better with each new edition, answers virtually all questions regarding fences, trees, boundaries and noise..."

Orlando Sentinel

Summary

Is a neighboring business driving you crazy? Too much noise from next door? Run-off from up the hill threatening to drown your yard?

Learn your rights and responsibilities with Neighbor Law, Nolo's clear-cut, comprehensive guide to the laws concerning common neighbor disputes. The popular bestseller covers:

• fences
• trees
• boundaries
• blocked views
• noise
• water issues
• neighborhood businesses
• dangers to children ("attractive nuisances")
• and more

In plain English, Neighbor Law explains how to find the law in each circumstance and resolve disputes outside the court -- but if you must go to small claims court, this popular book gives you the information you need.

The 5th edition is completely revised and now provides a new information on disputes about second-hand smoke. It also has a new chapter on researching the law online.


Discussion Forum

Latest threads from the forum Neighbor Law

Fences, trees, water issues, unclear boundary lines, noise, barking dogs, problem with a neighboring business, etc.