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Can the owner of a condo seek damages (new carpet,) from a owner below them for smoking in their condo?

West Bend, WI |

This is not a non smoking condo? There are no rules about smoking in the by-laws,

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Attorney answers 2


Maybe. You may be able to establish a case of private nuisance. Here is the basic definition of nuisance, from the Restatement of Torts, 2d. "§ 822. General Rule
One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another's interest in the private use and enjoyment of land, and the invasion is either
(a) intentional and unreasonable, or
(b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities."

Regardless of whether it is prohibited in the bylaws, if it unreasonably interferes with your use and enjoyment of YOUR condo, then you may have claim for nuisance.

However, please explain how an owner below you can get smoke into your carpet? Do you have a thatch floor in your condo?

I am in no way giving you legal advice. This answer does not create an attorney-client relationship or otherwise imply that I have intended to form such a relationship. You should sit down and discuss your case in detail with a trained and licensed attorney in order to determine your best course of action.


I agree that you may have a cause of action under "private nuisance". If you would live to discuss with me further, I welcome you to contact me.

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