Decades of living next door to smokers have taken their toll

Question: I am a nonsmoker who after 21 years was forced to sell my much-loved Hollywood-area condo because of a neighbor who smoked on her balcony. Regardless of my window being open or shut, the smell took over my home. Smoke came into my place through my air-conditioner and heat vents. Over time the smoke turned into a gooey smelly substance that discolored and stuck to my walls, carpets, drapes and belongings. Despite my requests, my neighbor insisted she had every right to smoke on her balcony.

Before I bought my new condo, I checked to make sure no smokers lived nearby. But shortly after escrow closed, new adjacent owners moved in who are chain smokers. Their exclusive-use, open-air patio-courtyard is situated in a way that the smoke permeates my home through windows, vents and common-structure joints. When I asked if they could please smoke inside their home, they refused.

Two months later, the condo owner directly beneath me returned from a lengthy convalescence. He also goes outside onto his exclusive-use common-area patio and smokes.

I have developed severe headaches and nausea and my eyes are constantly irritated. I’m now completely overwhelmed by the smoke and, after experiencing serious breathing problems, have been diagnosed with lung cancer. Not one of my smoker neighbors was willing to work out an amicable solution. Boards at both condos kept putting me off and refused to interpret the CC&Rs; in a way that would help me. Each board told me, “It’s a civil matter between you and the smoker.” If I sue, my doctors are not hopeful that I will live long enough to see it through.

Short of moving again, what can I do?

Answer: Various state legislatures have attempted to address the issues of neighbors who smoke in common-interest developments and smoke’s interference with health, safety and the use and enjoyment of another’s home.

When a neighbor’s smoke interrupts the use and enjoyment of one’s own home, that interruption may be a nuisance. The essence of a private nuisance is its interference with the use and enjoyment of land. California’s Civil Code Section 3479 defines a nuisance as anything that is injurious to health, is indecent or offensive to the senses or is an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.

The activity in issue, such as smoke or odors from an adjoining unit, must “disturb or prevent the comfortable enjoyment of property.” Because simple requests to your neighbors have been unsuccessful in reaching a mutually acceptable resolution and the boards have also failed to be of assistance, most of your remaining options -- including seeking an injunction barring the neighbor from smoking on the patio -- will be costly and time-consuming.

As time is of the essence, you may have to sue to enforce your right to be free of that interference, but litigation should be a last resort.

Mediation might be a possible alternative to the rigors of a lengthy and costly litigation. Where litigation is fueled by money, argument and discovery processes, mediation encourages disputants to voluntarily negotiate their own settlement agreement. Because the mediator is a neutral party, his or her goal is to help parties resolve the conflict peacefully and as expeditiously as possible.

“Mediation is a confidential, voluntary process in which a neutral third party facilitates communication between people to help them resolve their disputes,” said Avis Ridley-Thomas, administrator of the Los Angeles city attorney’s Dispute Resolution Program.

“There is no charge for this mediation service, and because the program is funded by a grant, participants are asked to answer a few questions such as age, income and ethnicity. Mediators are volunteers and do not give legal advice. The program has trained more than 1,500 mediators and serves residents and anyone who has conducted business in Los Angeles County.”

To reach the program, call (213) 485-8324 or go to www.lacity.org/mediate. You can also e-mail mediate@atty.lacity.org.

For other mediation programs throughout California, contact the California Department of Consumer Affairs at www.dca.ca.gov.

Questions can be sent to P.O. Box 11843, Marina del Rey, CA 90295 or e-mailed to noexit@mindspring.com.