The neighbors' marijuana smoke is polluting my house, what can the condo board do?

The neighbors’ marijuana smoke is polluting my house, what can the condo board do?

Ryan Poliakoff
| Specially for the Palm Beach Post

Live in a home managed by a condominium, cooperative or Owners Association? Do you have questions about what they can and cannot do? Ryan Poliakoffan attorney and author based in Boca Raton, has answers.

Ask: We live in a townhouse. Our garage is next to our neighbors garage and is attached as the first floor of our apartment. The neighbor’s unit is below our apartment and several other apartments. Our neighbor smokes weed all the time. All of our units above his unit, plus our garage, now reek of the odor.

I tried to talk to the neighbor and he closed the door in my face. He rents out his apartment (I own mine), and I’ve tried to talk to the landlord to no avail. Our management company said there is nothing we can do about it. Do we have options? Signed, AS

Dear AS.,

Since the state of Florida allowed doctors to recommend cannabis use to treat medical conditions, I have received more and more complaints about the smell of cannabis smoke. I think in the past people were much more cautious about the smell because possessing cannabis was downright illegal – but now that it can be used legally by a wide variety of people (including, if recommended by a doctor, by smoking), it seems that people are much less concerned about their neighbors finding out about their use, whether that use is legal or not.

But ultimately I view this problem as identical to the problem of any smoke odor. It sounds like you find the smell of cannabis particularly offensive, but you don’t say whether you are also bothered by tobacco smoke (whether cigarettes, cigars, or pipes, all of which have very different odors). Personally, I find the smell of cigarettes and cigars much more unpleasant than cannabis (but like most of us, I would always prefer no smell at all). In any case, this is an everyday nuisance question.

Is the smell of cannabis so strong, pungent and constant that a person of ordinary sensibility would find the smell interfering with the unfettered enjoyment of his home? That is a question of fact that would be decided by a judge or jury.

Although the management company says there is nothing they can do about the issue, that is not entirely correct.

If the government documents contain a nuisance provision, they can police that – and that is true, even if this person has a recommendation to use or smoke cannabis (that would not eliminate the nuisance to other owners, and of course there are many ways to do that). use cannabis that does not require combustion). However, nuisance cases are extremely difficult to prosecute and it would have to be a truly extreme situation for the association.

However, you and your neighbors have every right to police the governing documents yourself, and it is best to hire your own attorney to sue the landlord and tenant to stop the nuisance behavior.

The other possibility is that the statement prohibits illegal behavior. It is possible that this person is using cannabis illegally, but it would be very difficult to find out. But it might be worth it to include that in a nuisance lawsuit so you have several avenues of attack.

Do owners of an apartment or homeowners’ association have to take out liability insurance?

Ask: In your recent column about owner’s insurance, you failed to tell this person that they are liable if someone is injured on their property. That’s why you need insurance. Signed, MK

Dear MK,

Of course, there are many good reasons to get insurance, and this is a good opportunity to make people understand that there are also many different types of insurance. With condominiums, we usually focus on casualty insurance – the insurance that protects your property (both real and personal) if you have a fire, or are hit by a hurricane, or if there is a catastrophic leak, or some other hazard. There are also special types of accident insurance, such as flood insurance, which protects against damage from rising water, rather than wind-driven rain or a pipe leak.

Then there’s liability insurance: the type of insurance that protects you if you cause damage or injury to another person, usually as a result of your negligence. This is the type of insurance that covers someone who is sued because a guest is injured in their home.

Not all governing documents require one type of insurance or the other, and you can usually purchase one without the other. There is also umbrella insurance, an expensive insurance policy that covers liability after a primary liability policy has been exhausted; special insurance to protect jewelry and other expensive items, especially against theft; car insurance; boat insurance etc.

Whether or not to purchase a specific type of insurance is a personal business decision where the risk of loss is measured against your ability to cover that loss.

I can’t tell you how many people contact me because they’re being sued when they accidentally cause damage to their neighbor (by running the sink or starting a fire, for example) and they’ve chosen not to have liability insurance – so they have no protection at all.

Unfortunately, the cost of insurance is so high that many people cannot afford the insurance nor the costs of the damage that could occur, making everyday life a gamble.

Ryan Poliakoff, partner at Poliakoff Backer, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of “New Neighborhoods – The Consumer’s Guide to Condominium, Co-Op and HOA Living.” Email your questions to [email protected]. Be sure to include your location.