Is it legal for a neighbor to smoke outside his/her window?

berliita — Sat, 18 Nov 2006 15:17:41 GMT

I live in an apartment building. The residents of all the apartments adjacent to mine smoke cigarettes regularly. Since evidently all of them find cigarette smoke toxic and repugnant, they make sure to hold the burning cigarettes outside their windows. The smoke gets into my apartment, of course. I've asked them to smoke with their windows shut, but they claim that it's their right to smoke inside their apartments. The rest of the neighbors in my building support them, curiously even the nonsmokers. They say the law is on the smokers' side. Is that true (my country of residence is Israel, but i would also like to hear what the state of affairs is in other countries)? How would you advise me to handle this conflict?

RE: Is it legal for a neighbor to smoke outside his/her window?

Roee Rotman — Sun, 19 Nov 2006 10:41:20 GMT

Your neighbors are right. The law does support them. You can't prevent them from smoking outside their window just as you can't prevent them from cooking meals because the smell of the food is not to your taste. True, there are laws and regulations in Israel that deals with smell nuisance, but they mainly refer to "unreasonable" odors, usually in industrial or health & safety contexts. These laws are meant to deal with pollution, health hazards and so on, not with cigarettes smoke.

Moreover, I don't think that any court will define cigarettes smells as "unreasonable" in the context you described.

For smoking there is a different law, that sets limitation only on smoking in public places such as hospitals, restaurants, theaters, offices, etc., and not in one's home or just in the street or an open place. I believe that a person's window is, by definition, the link between his private home and the street, so there is no way to legally prevent him from smoking there.

As a non-smoker myself, I'm sorry to say your hands are pretty much tied.

RE: Is it legal for a neighbor to smoke outside his/her window?

berliita — Sun, 19 Nov 2006 18:46:54 GMT

There is a significant difference between the fumes of a smelly dish and the smoke of cigarettes: cigarette smoke is toxic.

RE: Is it legal for a neighbor to smoke outside his/her window?

Roee Rotman — Sun, 19 Nov 2006 19:48:56 GMT

So is smoke from cars. And yet, you don't prevent cars from passing near your house. Because smoking is legal, there's nothing you can do. If your neighbors don't want to show some consideration, you can't force them. Neither can the other neighbors.

RE: Is it legal for a neighbor to smoke outside his/her window?

berliita — Sun, 19 Nov 2006 22:33:24 GMT

I'm not a lawyer, but it seems to me that there is a significant legal difference between the air pollution of cars and the smoking neighbor situation: it is usually difficult to point a finger at a specific car and blame it for the air pollution one suffers from: a) cars move about, b) cars are usually relatively far from most floors of a typical residence building, c) even if a specific car were eliminated from the roads or a specific driver's driving license is revoked, it usually wouldn't have any noticeable effect on the degree of air pollution any particular individual would experience. On the other hand in the case of the smoking neighbor there is a specific person to accuse of the pollution, and if this person stops smoking outside their window the degree of air pollution affecting the neighboring apartments will reduce noticeably.

RE: Is it legal for a neighbor to smoke outside his/her window?

Roee Rotman — Mon, 20 Nov 2006 07:52:55 GMT

There's no relevance to the question of pin-pointing a specific "polluter", be it a smoking car or a smoking neighbor. If the law wished to prevent cars' smoke, it would prohibit cars from driving in residential areas.

Another point is that there are quite a few homes that suffer from cars' smoke, even in the 1st and 2nd floors, and obviously on ground floors and in rural areas.

Since I'm a lawyer, I can tell you that there is a legal difference between cigarettes' smoke and industrial smoke: The first kind is regarded as a private matter that the law doesn't deal with as long as one doesn't smoke in places designated by law as "non-smoking places". In that respect, cigarettes' smoke is the perfect legal equivalent of smelly dishes (There's no point in repeating the "toxic/non-toxic" claim. I'm not giving you my opinion, I'm giving you the law's opinion). You could argue that the definition of "non-smoking places" should be expanded, but till that happens the law is against you. Write to your Knesset Member.

Cars' smoke, on the other hand, is regarded as a "necessary evil" of the modern world, and the law focuses on reducing it (and other sources of industrial pollution) to a level on which it could be said "well, it is bad, but it's worth the trouble". So, there is a way to stop all the car pollution, but that means going back to horses and carriages. The law believes that this is an unreasonable solution, and so is preventing people from standing at the window of their own home and smoking.

RE: Is it legal for a neighbor to smoke outside his/her window?

berliita — Mon, 20 Nov 2006 08:21:58 GMT

Your answer sounds unreasonable to me. Doesn't it imply that if i fire my pistol through my apartment's window, and the bullet happens to hit a person living across the street, i can't be charged for it?

RE: Is it legal for a neighbor to smoke outside his/her window?

Roee Rotman — Mon, 20 Nov 2006 08:51:30 GMT

I understand that you're quite militant in your views about smoking, but surely you realize that no mater what YOU think, the LAW make think otherwise. I'm sure you can see that the law doesn't regard firing weapons (or throwing anything out of your window, for that mater) the same way it regards smoking. If I fire my pistol on the street and hurt someone, I'm exposed to both civil action and criminal charges. If I smoke in the street, I'm exposed to none. The same goes to smoking in my own home as opposed to firing through my window.

The law's basic view is that it's reasonable for a person stand in his home by his window and smoke. It also regards firing your pistol through your window as unreasonable. Therefore, the first action does not expose you legally, while the second does.

Again, I'm sorry you don't like my answers, but you keep misunderstanding them for my VIEWS or GUESSES. I'm not telling you what I think is right or wrong in that respect. I'm just telling you what the legal status is. If you find my answers unreasonable you should take some sort of action to change the law. One way to change the law is to start some sort of public campaign for it. another is filing a legal action against your neighbors and hope that you can convince the court that your way of thinking us the right way to interpret the existing law.

I can tell you that there is a paragraph in the Israeli Tort Ordinance (par. 44(a)) that deals with interrupting one's reasonable use of his property. The paragraph is stating that if someone's behavior is interrupting your reasonable use of your real-estate property, considering the property's nature, designation and location, he is exposed to civil action. You can start there, but it is a very very weak claim. No reasonable court will interpret that paragraph as allowing it to issue an order preventing your neighbors from smoking without a more specific and literal legal basis. And you'll have to hope, also, that your judge is a non-smoker.

RE: Is it legal for a neighbor to smoke outside his/her window?

Orna — Tue, 21 Nov 2006 08:55:30 GMT

Yeah - they're right. Accordign to Israeli law, one can smoke at home.

RE: Is it legal for a neighbor to smoke outside his/her window?

berliita — Tue, 21 Nov 2006 20:36:47 GMT

The question is not whether one can smoke in one's own home. It is whether one can smoke in one's neighbor's home without the neighbor's consent.

I've heard enough about the legal state of affairs in Israel. I'd like to hear now how things are in other countries.

I found the answer in this Q&A blog!

berliita — Tue, 28 Nov 2006 10:15:06 GMT

Thank you, Roee and Orna, for taking the time to answer my question.

Roee, i've given you one thumb up for your last answer, since it contains a verifiable legal reference, which is pertinent to my question. I've given you one thumb down on each of your other replies, because they were nothing more than unverifiable statements of opinion. The only reason i haven't given you two thumbs down on these messages was that by replying to them my question became clearer, i think.

Orna, i've given you two thumbs down, because your answer was not only an unverifiable statement of opinion, but also has repeated what has already been said in previous messages of this thread.

I'm closing this thread due to lack of new replies, even though i'd still like to know how countries other than Israel deal with the smoking neighbor situation.

RE: Is it legal for a neighbor to smoke outside his/her window?

esquared_studio — Wed, 09 May 2007 00:26:02 GMT

From the current explanation of "interrupting on'es reasonable use of his property...." does this apply in the USA? My neighbor smokes cigar smoke that hovers around for hours and comes into my private home that I own and my car and I inhale the toxic fumes and so does my unborn baby. And, it is costing me money to run my A/C instead of having my house cool off naturally with the evening cool air. Any insight would be appreciated.

RE: Is it legal for a neighbor to smoke outside his/her window?

Kitt_E — Sun, 15 Mar 2009 05:35:08 GMT

there are no laws in the usa that prevent a person from smoking in their own house, window open or not. i have heard of some apt buildings banning smoking from inside the complex, but not inside ones own apt. i have also heard of some cities trying to ban smoking outdoors. as far as i know, none of those have passed. im currently in the state of utah, just moved here from california, both states have laws preventing smoking inside any public building (non residental), and you cant smoke within 10-25feet(im not really sure of the actual footage)of any entrance way or opening of public buildings.