You could pursue some or all of the strategies described below.
- Create a voluntary agreement with your smoking neighbor to limit where he or she smokes
- Encourage your homeowners association (HOA) (if there is one) to adopt a smokefree policy
- File a lawsuit against the HOA (if there is one) and/or your smoking neighbor based on legal grounds such as nuisance, breach of contract, and/or trespass
(Note that this information is specific to people living in a single-family home in California. If you live in an apartment or a condominium, or if you have a medical disability and are affected by drifting secondhand smoke, see the questions that address those situations.)
One option is for you to try to reach a voluntary agreement with your smoking neighbor. The neighbor could, for example, agree to limit where he smokes or the times when he smokes. Such an agreement is not legally binding. Americans for Nonsmokers' Rights (ANR) has a publication called The Smoker Next Door: Handling Unwanted Tobacco Smoke in Apartments and Condominiums, which can be useful for pursuing a voluntary agreement among residents of single-family homes, even though it is designed for residents of multi-unit housing.
Although you and your neighbor could work out an agreement on your own, there are mediation and dispute resolution programs that can assist people with disputes like this.
Many single-family houses are located in planned developments that are governed by an HOA. The HOA has the legal ability to prohibit smoking in outdoor areas of the neighborhood. For details on how an HOA could adopt such a policy, see our publication, How to Make a Condo Complex Smokefree. (Although this document is designed for use in condominiums, it also applies to other types of common interest developments, such as planned subdivisions.) If your home is not governed by an HOA, you would not be able to pursue this option.
Another option is to bring a lawsuit against the HOA and/or the neighbor. Our publication, Options for Condo Owners Suffering from Drifting Secondhand Smoke, provides information about this option. (Although this document is designed for use in condominiums, it also applies to other types of common interest developments, such as planned subdivisions.) However, ChangeLab Solutions does not provide direct legal services to clients, so we would not be able to represent you in a lawsuit.
If you do not have an HOA, you would be able only to sue your neighbor. Another avenue you might want to pursue is filing a lawsuit in small claims court. In this case, you would represent yourself and not have to hire an attorney. The California Department of Consumer Affairs has developed a helpful website, The Small Claims Court: A Guide to its Practical Use, to answer questions about the process of resolving a dispute in small claims court.
We wish you luck with this difficult situation.
Photo credit: John RB