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by mcmgcm
on Thu Jul 23, 2009 6:39 pm |
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Hi all, I really could use some feedback here.
Long story short- My husband and I live in a rented condo in San Diego, Californiaha. We have rented this condo for five years. Our land lord has no problem with our smoking here as long as we do so on our balcony- not inside the unit. New neighbor moves in upstairs about 6 weeks ago.
After a few days she comes down to our condo and declares "You MUST stop smoking on your balcony, I am allergic to cigarette smoke and YOU are killing me!!"
My husband apologizes and states that we will try and be more concious in the future. WE have started going all the way out to the street to smoke, but every so often I like to enjoy a cig on my balcony with my morning coffee.
Well, Today we received a letter from Elder Law and Advocacy, Senior Citizens Legal Services Program.
It stated that we were creating a nuisance by smoking in the vicinity of her home.
I will quote the letter:
Ms ************** has previously informed you that she is allergic to cigarette smoke and that your cigarette smoking is entering into her unit. You have continued to smoke near Ms. **************** residence.
California Civil Code 3479 states the following: "Anything which is injurious to health.... or is indecent or offensive to the senses... so as to interfere with the comfortable enjoyment of life or property, is a nuisance."
Your cigarette smoking is entering Ms.*********** apartment, negatively affecting her health and severely dinishing her enjoyment of her unit. In the state of California a private nuisance is actionable and you may be liable for damages (CC 3481)
Please refrain from smoking on your patio, balcony, or near Ms ********** residence. If you continue to produce cigarette smoke that enters Ms.******** residence, we will advise her as to her full legal recourse in remedying this situation.
Be advised that as Ms. ******is a Protected Party as defined in Civil Code 1761(f), any judgement in her favor may be tripled as well as punitive damages awarded (3345(b))
End of letter
So I would like to know if I have any recourse regarding this matter. We have been here for a long time and love our place. No one has ever said anything about our smoking before. Also we can't even entertain anymore because ALL of our friends smoke. I can't even have my 76 yo mom over to visit because she smokes like a train and can't go up and down 3 flights of stairs just to get her nicotine fix.
If anyone knows a way to figure this out I am open to all suggestions (other than not smoking) lol.
Thanks in advance
Maria |
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mcmgcm
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by runamok
on Thu Jul 23, 2009 7:44 pm |
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Welcome to the forum.
There's very little you can do. California Civil Code 3479 is certainly a draconian, over-bearing, and overly broad law, but it spells it out quite clearly. You'll have to continue going out to the street and if your neighbor says that the smoke is still migrating into her unit from the street, you'll have to go somewhere else.
I guess there is one thing you could do. You could just smoke in your condo like civilized people. Your neighbor will probably never even realize it.
We've let things get to the point of no return. Our only choice (and it's really not a choice) is to let anti-smoking self destruct, which they will...someday.
By the way, and not that it will make any difference, it's impossible to be allergic to tobacco smoke. In this day and age though, any dislike of any odor is considered by many to be an allergic reaction and it is very trendy to be "allergic" to tobacco smoke.
The smell of dogshit can make me gag and even puke if I have to clean it up, but that does not constitute an allergic reaction. |
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runamok
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by mcmgcm
on Fri Jul 24, 2009 2:36 am |
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Thank you for your quick reply
Alas, I have just returned from smoking my last cig of the night- WAY OUTSIDE- I was hoping someone would be able to help me legally........... So, what I am hearing is that I have no recourse????
I must move???????? After living happily in this condo for five years?????
I always thought that I lived in a free country- I have fricken served in the Army- fought for my country and now I can't smoke a cig on my own balcony in the morning?!!? Geez, what is this country coming too??
I really don't want to get on a soapbox, but, REALLY ??????????????
Are there any California lawyers out there that may be able to direct me in the right direction?
BTW:
I am in the medical field and I know that people can claim to be "allergic" to cigarette smoke- it is a catch all phrase that non smokers use so that they can rage their "war" against smokers.....ARRRGHH
I am upset because this so called group (Elder Law Advocates) decided to write a letter to me saying basically that I could be held financialy liable if this comes to court.
Can she file a lawsuit against me????? That's what I want to know, and if she can what kind of attorney would I retain to represent me??? Because I would, in a heart beat. This kind of injustice makes me madder than all hell.
Maria |
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mcmgcm
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by gilster
on Fri Jul 24, 2009 3:59 am |
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You don't live in America - you live in California [sorry, but CA started all this crap and it's getting worse]
Can you smoke inside your Condo? Does the landlord have any issues with it or is it in your lease?
California law sides completely with the "victim" concerning cigarette smoke, they classified it as a carcinogen - I'm surprise the state hasn't regulated smokers to walk around with warning tags on them yet.
Talk to a lawyer, but as runamok says you are most likely SOOL.
Google search Belmont and Calabasas and see what else is going on in your state.
That said, time for incense burning on the porch and lots of bbq and fish fries with lutefish.
Don't be mean about it - just do it - retain a cultural right or two....and for goodness sake, keep your windows closed - it'll stink up the joint...
Side note: If the landlord owns all the units and she was 'deathly allergic' to cigarette smoke she should have asked that important question before she moved in - if she is so concerned about her health and all/sarc |
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gilster
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by 003
on Fri Jul 24, 2009 4:04 am |
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Well, the land lord allows smoking inside the building right? And she made the choice to live there? If so, it doesn't seem reasonable that a non-smoker can move into a condo building where smoking is allowed and then sue the residents for smoking. She made the choice to move into a building where smoking is not prohibited.  Also are there not laws that say you can smoke on your own property? It seems like there may be a conflict of laws and this would not be so clear cut for the old hag in court.
If there is really nothing you can do about it, I will let my inner immaturity shine through. Liquid Ass. Amazing stuff. |
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003
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by mcmgcm
on Fri Jul 24, 2009 5:37 am |
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No, our landkord lives offsite, she said she didn't mind if we smoked as long as it was outside.
She is OK with it as long as we smoke out on the balcony. This new person, MS. ************** just moved in to the complex upstairs from us. She is the one who is causing us problems. We spoke with the homeowners association and they said as long as the homeowner (our landlord) didn't have a problem with us smoking everything would be allright.
The problem is we received this letter from the Elder Advocacy and they stated that we should stop smoking or they would advise our new neighbor to seek legal means for us to stop?!
Crazy , I know.
Only in the US can you be free but not free. |
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mcmgcm
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by gilster
on Fri Jul 24, 2009 7:17 am |
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The 'Elder Advocacy" started with you - their next step is going after the HOA.
The "Advocacy" will be going after your landlord too.
Does your landlord own the condo she is in too?
Can you find out if this new tenant is month=to=month or lease?
You are a long term tenant and more valuable to a landlord.
Whiny tenants like her are annoying to landlords, we despise them.
See what happens - is she always at her condo? do you ever get a break of her leaving the place?
Again - I'd BBQ nightly -and smoke then.
[Candles - Incense - BBQ] Don't tick off the other neighbors though. |
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gilster
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by Jellytoad
on Fri Jul 24, 2009 7:50 am |
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| Easy for me to say but you might want to consider going to court and making them PROVE they are harmed by the smoke. Since SHS is NOT harmful they might have a problem doing that. I have to say that is a tough call though... |
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Jellytoad
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by runamok
on Fri Jul 24, 2009 8:24 am |
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Jellytoad wrote: ...you might want to consider going to court and making them PROVE they are harmed by the smoke. Since SHS is NOT harmful they might have a problem doing that.
They don't have to prove that it is actually harmful. Just that it is "offensive to the senses" and/or a "nuisance".
I remember reading about that law when it was enacted and it was written specifically with smokers in mind but will undoubtedly be used/abused in the future to control and/or eliminate all manner of behaviors which people don't like for whatever reason. Just another hammer in the social engineering toolbox. |
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runamok
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by libertarian99
on Fri Jul 24, 2009 12:38 pm |
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Most people don't really have a clue what they are allergic to because they never had the official "stick test" where they prick your skin 200 times to test for specific allergens. I had that test and found out that I'm severely allergic to cats (I have three of them), mold and dust mites, which are just about everywhere and impossible to avoid. I take it for granted that I have to take an allergy pill every day and I don't expect everyone around me to be allergen-free.
It's a shame that you were there first, then she moved in and now there's a problem. Is there any hope of irritating her to the point of causing her to move out without breaking the law? You could switch the nuisances around so she would have to keep filing more complaints every day to keep up. For example, play loud music one day, then grill fish on your balcony the next. Keep changing the nuisance until she either goes insane or moves out. |
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libertarian99
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