If I live in an apartment where the balcony is shared and I am a non-smoker but my neighbor smokes, do I have any rights?

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If I live in an apartment where the balcony is shared and I am a non-smoker but my neighbor smokes, do I have any rights?

I cannot get fresh air in my home, ever.

Asked on April 28, 2012 under Real Estate Law, Colorado

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Unfortunately, you probably do not have any rights in this circumstance. Unless it is a "no smoking" building, your neighbor has the right to smoke in his/her apartment and on the shared balcony which the neighbor has access to. Arguably, if the smoking is truly excessive, you may be able to show that the neighbor is distrubing or violating your right to quiet enjoyment, but you would have to show it is truly an excessive level--otherwise, the neighbor is doing nothing wrong by doing something which he or she has a right to do. To analogize: even if you hate your neighbor's music, you have no right to complain if he or she is playing it at reasonable volumes at reasonable times; only if the neighbor were playing it excessively loud, late at night, etc. might you have a claim or cause of action. Similarly, if smoking is allowed in your building, you'd have to show that the neighbor is smoking more than is reasonble to possibly have the right to make them cut back (though still not stop entirely) the smoking.


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