If the smoke really does leak over, the right answer is to find a way to plug the air leaks.

If that isn't possible, then tough: This isn't anything new. The guy has been living (and smoking) there longer than the complaining neighbors have been alive. It's like the people who move into a house next to an airport, and then complain about the noise.

It doesn't matter how long you've been smoking into your neighbors' house -- you don't have a right to do that.

There's no primogeniture in forcing your behaviors on the neighbors.

And really, if it's seeping through a hole, I don't understand why answer number one wasn't to have the hole closed up.

Reporting being what it is these days nobody seemed to bother to ask or answer that question.

Especially why doesn't the neighbor plug the hole. Perhaps because he really wants the smoker to stop smoking and if he fixed it he would lose standing.

Neighbors trees cross my property line I trim them back to the property line. The reasonable response was for the non-smoker to seal his wall.

> There's no primogeniture in forcing your
> behaviors on the neighbors.

If my neighbour makes a tan-yard, so as to annoy and render less salubrious the air of my house or gardens, the law will furnish me with a remedy; but if he is first in possession of the air, and I fix my habitation near him, the nuisance is of my own seeking, and must continue. (Blackstone 1766: 402-403)

No, the reasonable response is for the SMOKER to seal the wall -- same as restaurants are made to have expensive vent systems so their cooking smells do not permeate the homes of their neighbors.

>>No, the reasonable response is for the SMOKER to seal the wall

No the reasonable thing would be for the complainers to have not moved next door. One walk through their house should have told them all they needed to know to walk the fuck away. Instead they move in and take this guy to court. That makes them the shitheads.
This conflict is nothing new in the world. I have to go with the guy who has seniority. The new people are the trouble makers and the problem. If the roles were reversed, and the smoker is the new guy, then it would be on him, and he would be the problem.

Though I will admit that filling in a hole in the wall in the basement should not be a big deal. There must be more to it then that.

No, the reasonable response is for the SMOKER to seal the wall -- same as restaurants are made to have expensive vent systems so their cooking smells do not permeate the homes of their neighbors.

Posted by: Amy Alkon at March 12, 2015 6:48 AM

To carry this analogy to a law school type question. What if the new neighbors were Muslim, and the two shared a deck out back of their duplex where the first tenant was in the habit of roasting pork on his barbecue grill every weekend?

Should the new tenants be able to stop him from this practice because both the smoke and the smell crossed over onto their side of the deck?

Having read the article, I now think the new neighbors are a pair of fuckwit eggshell humans whose entire case resides on the existence of magic smoke which does not rise, but sinks to the basement first, then magically rises to fill their home. So unless he smokes in his basement they are full of shit.

Also I bet they want him to replace the entire wall, not just fill a few holes, entirely at his expense.

In addition to the injunction, their [the complainants] lawsuit asks for $500,000 in damages.

This is certainly not a 'reasonable' response or demand.

Having read the article, I now think the new neighbors are a pair of fuckwit eggshell humans whose entire case resides on the existence of magic smoke which does not rise, but sinks to the basement first, then magically rises to fill their home. So unless he smokes in his basement they are full of shit.

The level of drama in this is really something.

Obviously the solution is for the smoker to block whatever holes are there (what those could be is not clear) and the neighbor to do the same.

I'd wager the "unborn baby" in the story is going to create more of a disturbance than this magic smoke which has destroyed their quality of life.

But Kevin it'll be a magic baby, I can already tell.

Please don't ask me to choose between secondhand smoke and a secondhand baby.

All babies are magic Jo. The only question is white or black magic (and sometimes both).

Maybe he can then sue over the nuisance of the new baby and all its noise entering into his home.

Why is everyone claiming that they know the "reasonable" thing to do?

Read the whole report - the new neighbors tried to be reasonable and the jackass smoker said no.

The smoker is the one causing the problem, therefore, the smoker should be the one to pay to fix the problem - not the neighbors.

If the smoker had taken care to not inflict his behavior on others then the judge would not have told him to stop smoking in his own home. That's not rocket science.

But, Nooooo, some people think they can do whatever they please and the neighbors be damned.

And, Yea, I just pontificated what my version of "reasonable" would be. (now, where did I leave my Mitre?)

I disagree. If we were talking about substantial smoke getting into the neighbor's home it would be different. But this sounds like the kind of trivial amount that only a professional victim would want to complain about.

And certainly, if the smoker was there first, then the ruling should have been "You moved to the nuisance - case dismissed!"

I had neighbors move below me...I think it was a poker ring because it was smoke and coffee odors coming up into my place all night and a lot of traffic. Bad dudes too. After 15 years there I moved. Everything I owned smelled of the smoke. I had to wash and dry clean everything.

jdgalt summed up my position nicely.

Here's another thought: if the smoke is really an issue, and this guy has been doing it for 50 years, why has no one else complained? Doesn't that seem suspicious? NO ONE ELSE COMPLAINED IN 50 years? Sounds like we have a couple of entitled special snowflakes that want to bully their likely poorer neighbors into conforming to their will.

"Read the whole report - the new neighbors tried to be reasonable and the jackass smoker said no."

You really don't know what their idea of "reasonable" is, since the report doesn't say. For example, their demanding him pay 20K for a new basement wall entirely at his expense just because they decided to move next door is not reasonable. Their suing him for $500k is not "reasonable." Not by my definition anyways.

"I had neighbors move below me...I think ..."

That's because smoke rises to the roof, it doesn't sink to the basement.

I also want to know where's the proof that should be the basis of the injunction? Claiming to smell cigarette smoke is not any sort of proof that I know of, but then I'm not a lawyer. Raise your hands if you want a judge to issue an order to regulate your behavior without substantiated proof.

CatherineM,

You were there first and your claim is far more believable. You also fixed the problem by moving. You didn't get a court order invading their property.

This is what killed the music district in Austin. A bunch of 20 somethings moved in because it was 'hip' and 'cool'. They liked the bar scene and wanted to be near. Then they became 30 somethings and started to have kids. Suddenly those bars and music aren't so nice. So they shut them down. Called the cops for noise violations. Got judges to close the businesses. Instead of recognizing they had changed and should move to a more appropriate location they destroyed businesses that predated them by decades.

Sigh. Physics...

1) Cigarette smoke - even wood smoke - does NOT continue to rise after the heat of combustion dissipates. It falls. Foot traffic tends to obscure this, but the floor of a heavy smoker will be coated with tar and other combustion products.

2) A simpler solution to the issue of smoke (in detectable quantities, no less) moving next door is a simple fan. Establishing a lower pressure on the smoker's side of the common wall will prevent migration. This may be possible with the adjustment of existing ventilation.

3) It is likely that not just immediate smoke, but the odors from a decades-long history of smoking are detectable on the other side of that common wall.

The odor is probably much less toxic than the relationship one obtains by suing a neighbor living mere feet from you.