Maryland courts have weighed in on an issue of growing importance in residential communities: smoking. In its recent ruling, the Court of Special Appeals of Maryland upheld the ruling of the Circuit Court for Prince George's County, holding that secondhand smoke does not constitute a nuisance per se, and that under the circumstances of this case, the secondhand smoke did not constitute a nuisance that would be in violation of common law or the rules of the cooperative.
As a member and resident of a townhouse in the Greenbelt Homes housing cooperative, David Schuman sued the cooperative and his neighbors, Darko and Svetlana Popovic, who reside in the immediately adjacent townhouse, claiming, among other things, that the cigarette smoking of the Popovics constituted a nuisance in violation of common law and in violation of the rules of the cooperative (which did not ban smoking, but prohibited nuisance activity). Prior to the filing of this lawsuit, the cooperative sealed cracks between the townhouses and engaged an industrial hygienist in an attempt to address and resolve Mr. Schuman's complaints. As the litigation progressed, Mrs. Popovic passed away and Mr. Popovic agreed to refrain from smoking in the townhouse. Mr. Schuman continued to assert that Mr. Popovic's smoking on his outdoor patio constituted a nuisance.
The court found that secondhand smoke is not a nuisance per se, because in certain situations it does not result in injury. The court also found that Mr. Schuman failed to offer evidence of any significant injury resulting from the Popovics' smoking, and, therefore, there was no nuisance in this case. However, the court noted the importance of secondhand smoke as a health issue and indicated that under a different set of facts, it may have reached another conclusion, even going so far as to provide that the opinion "does not pretend to be the final word on liability for secondhand smoke in multi-unit residential housing."
Increasingly, condominiums are grappling with what to do when one unit owner complains about the smoking of a neighbor. Smoking within a residential unit is legal conduct and, for most condominiums, permitted by the governing documents. Nonetheless, the transmission of smoke odors between units can be unpleasant and potentially could result in property damage or negative health implications. Although the court found that there was no nuisance in this case, it pointed out the steps taken by the cooperative association to address the complaints, including sealing cracks and determining that the existing rules permit smoking. In light of this recent Maryland decision, it is important for associations to be aware of any smoking provisions in their governing documents and to address any related complaints within the scope of their authority.
