What are my rights to smoke in my own apartment?

We just moved into a new apartment and the lady who lives in the apartment behind us said that our smoke is coming into her place she and wants us to quit smoking in our own home. I talked to the office and they stated that she could demand we quit smoking in our house and if we don’t and she keeps complaining that they could evict us.

Asked on November 10, 2011 under Real Estate Law, Colorado


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

The issue is whether your smoke is in fact getting into her apartment, and, if so, how much. If it is, then it may be that you are violating her right to "quiet enjoyment" of her leased premises--that is, her right to fully use it free from interference or dimunition of its value to her. There are circumstances under which this could possibly lead to your eviction (if she complains about this to the landlord), but the key will be the facts: the level of smoke getting into her apartment must be such that would be offensive to the average reasonable non-smoker; if the average person would not find this an impairment of their use of the premises, then the fact that this person may be especially sensitive to smoke should not be an issue.

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