In the typical CC&Rs, the common area is defined as everything outside of the surface of the interior of your unit. If your CC&Rs are similar, you may have an argument that it is the HOA's responsibility. Most CC&Rs also have an arbitration clause as well, which you may be able to use either against the HOA or the offending condo owner.

As for the offending condo owner, there is an argument that the second hand smoke is an encroachment on your property and therefore is creating a nuisance.

However, the thing to remember is to keep the problem in prospective. If it can be solved relatively cheaply with some minor repairs, pursue the cure. Pursuing a legal claim is a very expensive proposition. It should also be kept in mind that if you don't solve the problem, among the issues you will confront is one of disclosure when it is your time to sell.

To answer your questions specifically:

1. You may have recourse if you can prove that the seller had actual knowledge of the problem and failed to disclose it. Depending upon the seller 's sensitivity to smoke, this may be a difficult thing to prove.

2. None that I'm aware of. Smoking remains a legal activity, though courts have allowed a prohibition of smoking by contract. Assuming your CC&Rs does not ban smoking, you probably have to rely upon a theory of nuisance.

3. Unknown.

Good luck.

Jeffery P. Woo, Esq.
Sedgwick, Detert, Moran & Arnold LLP
Complex Rental Property Group415-627-360y7
jeff.woo@sdma.com

I agree with Sally. Talk to the neighbor but also seal the area where you believe the smoke is entering. It sounds like that might fix it. Many HOAs of a nuissance clause in the CC&Rs that this smoke could fall under but if they are smoking in their own unit, there really is little that the NOA or management company can do.

Dear Gaper,

Have you spoken to your neighbors on that side? How about above and below on that side as well as above and below you? See if they smoke and if one of them does, ask them to work with you to resolve this issue.

I also would ask a handyman or contractor friend who might be able to give you some suggestions on how to stop this problem.

Just what has your HOA done? Please also re-read your condo documents carefully. I would highlight all the sections about nuisances from other Homeowners or tenants and see if anything is in there about being able to enjoy your unit without nuisances from cigarette smoke. Then when you talk to a real estate attorney, you can save yourself some money by showing him/her the relevant parts.

If you have no recourse other than to call an attorney, I would. No one should have to live with smoke of any kind. Please go to my website and check under RESOURCES and find contractors, handymen and attorneys. Try David Gellman or Ross Madden-- both are good attorneys. First call is always free.

By the way, I would love to hear how you solved this problem!

Good luck,

Sally

Hello Gaper, I know this must be very frustrating because I'm not a smoker and it would bother me to have to deal with Cigarette smell.
If I were you, I would pull the carpet, (at the very minimum) where you can smell the cigarette, and see if you can calk the opening to where the wall and carpet meet. If this doesn't work, you may have to pull all the carpet up and seal the floor, and wall.

Since it's been almost a year, I'm not sure what recourse you would have but you might want to talk with a real estate attorney.

If you are looking to go in another direction, I think you should talk with a contractor or carpet layer.

Good Luck, if you need a referral to a real estate attorney, or someone in the trades, feel free to ask.

Dave Tap Tapper
Realtor
Cashin Company http://www.DavidTapper.com
Redt4u@aol.com
650-403-6252
415-370-7195