I live in a condo and I have smoke coming into my unit from my neighbor. I have contacted the neighbor to no avail. The HOA said they would get back to me and never did. I have emailed them 3 times. I am going to send a certified letter but I want to know what legal grounds I have. I think this is a breach of quiet enjoyment but am not sure what to do.
Unfortunately this seems to be a pretty common problem. I haven't heard of anyone successfully forcing the unit owner or the HOA to do anything. If you goal is to fix the problem, you would likely have to hire an experienced contractor to determine the cause and what is necessary to fix it.
Likely the problem is within the walls. After you determine the problem you would have several options. (1) You could pay to fix the problem (consult a lawyer before doing any maintenance on common areas), (2) you could submit the contractor's report to the HOA and demand they fix it, (3) Submit the report to the HOA's insurance company for approval, or (4) Fix it and then submit the bills for reimbursement pursuant to 3 and 4.
Feel free to set up an appointment for a consultation.
I agree with Mr. Adams. All of these solutions are faster and less expensive than litigation.
This communication is not intended to create an attorney/client relationship. It is always recommended you consult an attorney in person to discuss your case. The Law Offices of Stage & Associates practices state-wide and represents homeowners and community associations. Please visit our website at www.stagelaw.com.
There is only one Florida case I have found on this and it is a 2005 Broward County court case that is not published so it has minimal precedential value but it is certainly persuasive. That case is Robin Hanes Merrill v. Jim Bosser, Case No. 05-4239 COCE 53.
In that case the Plaintiff who was a condo owner sued her smoking neighbor for damages based on theories of trespass, common law nuisance and breach of contract. The Broward County Court found that the excessive nature of the smoke did constitute a trespass. The Court also found that the excessive secondhand smoke had created an actionable nuisance for the Plaintiff. The Broward County Court also cited the Court of Appeals of Nebraska which had held that to have the use and enjoyment of one's home interfered with by smoke, odor and similar attacks upon one's senses is a serious harm.
Lastly, the Broward County Court addressed whethr the excessive secondhand smoke constituted a breach of the covenant of quiet enjoyment. The Court acknowledged that in Florida there was no case on point but relied on a Massachusetts Housing Court Ruling in 50-58 Gainsborough Trust v. Halle. The Halle Court ruled that while smoking is legal, secondhand smoke can be considered a breach of a quiet enjoyment covenant.
The Bosser case have been discussing is a case where a Broward County condo owner sued another owner. It is not a case where an association sued the smoking owner or where an owner sued the association for failing to sue the smoking owner. You might want to stop focusing on the association and start focusing on your legal remedies against your neighbor.
Years licensed, work experience, educationLegal community recognition
Peer endorsements, associations, awardsLegal thought leadership
Publications, speaking engagementsDiscipline