My house smells of neighbours weed

“I smell my neighbour’s cooking most days. Especially when it’s fish or heavily spiced food. I love food, but it’s ... too much. I actually started to feel sick. I set up air fresheners and kept all the windows open. Then winter came. I finally had to say something. My neighbour was very surprised. She had no idea how much I could smell what she was cooking. She apologized and said she’d run her stove fan and open her windows while cooking. Together, we asked the building manager to improve the ventilation. I’m glad to be working on this together.”

– Liam, Abbotsford, BC

Sniff, sniff. What’s that smell coming from your neighbour’s home? It may be a pleasant one … or not.

Everyday living produces smells. We bake, we barbecue, we compost. Some people burn incense, lather on perfume, or smoke. Whether you like it or not, your neighbour has the right to do things at their home that give off odours. But you have rights too. So, what if the smells coming from your neighbour really bother you?

When a neighbour produces odours that unreasonably interfere with your right to use and enjoy your property, the law calls this a nuisance. Whether a smell is a nuisance or not depends on:

• what’s causing it (or where it’s coming from)

• how intense it is 

• how long it lasts 

• how often it occurs

• how it affects your health and the environment

When an odour becomes a nuisance

Let’s look at an example. On a regular basis, a neighbour smokes on their outdoor patio, steps from your living room window. The smoke frequently drifts over, hangs about for a while, and regularly stops you from doing what you’re doing. It may even make you feel sick. You may feel anxious, too, about the impact of the second-hand smoke on your health. In this scenario, an odour is no longer just a drag. It could be considered an unreasonable interference of your right to use and enjoy your property — in other words, a nuisance under the law. 

Not every odour will meet the nuisance bar. Claiming pain and suffering from the smell of fresh brewed coffee or home-baked bread, for example, is unlikely to be successful. 

Also important: smell is a very subjective thing. Something that smells bad to one person may smell just fine to another. For something to be a nuisance, it must be shown to be a substantial and unreasonable interference in the eyes of an objective observer.

The nature of the neighbourhood can also be a factor

While some odours are part of everyday life, other odours may be typical for the neighbourhood. You’d expect to smell livestock, crops, and other farm-related odours in agricultural areas, for example, but not in a typical residential neighbourhood. 

To bring a nuisance claim

To pursue a nuisance claim, you need to bring a legal action. That’s no small matter. We explain what’s involved — as well as other steps to consider — under work out problems, below.

Hi OP, I'm a bit late to this thread, but wanted to say that I feel for you. We've recently had to deal with regular weed smokers next door (proper skunk, all day every day); if I'd been pregnant or with a newborn I would have been absolutely incandescent with rage over the situation.

Like you, we own, and the weed smokers have a council tenancy. We did initially try to address it with them in person, but they were aggressive, and so we took it to the police. I had to log every single incidence of cannabis use through the police website, which was very tedious, but the end result (six months later) has been a Community Protection Notice, which seems to have put an end to it. It has been a long slog, and obviously the neighbours hate us now, which isn't great; there is also the risk that it might devalue our property when we come to sell.

If I were you I'd try addressing it with you neighbours at least once. If a request from a pregnant woman doesn't make them change their habits, then you'll need to ask yourself whether you are ready to deal with the stress of taking the police route. I'd like to think that a private landlord would think twice about renewing a tenancy once a Community Protection Notice has been issued (if it gets that far). Good luck!

If you live in a state where marijuana is legal, you might have encountered smoke where you least expect or desire it. For instance, what if when you're putting your toddler to bed, you can smell marijuana coming from the neighbors' back porch? Short of never opening the window again, does the law offer any way to stop neighbors from smoking weed right next to a child's bedroom?

Try Talking to the Neighbor First

Regardless of your state or local laws, a good first step could be to talk the neighbors. It's possible they're unaware that smoke is drifting into your house. By approaching your neighbors in a considerate manner, you might be able to resolve the problem quickly, and without straining the relationship.

Another relatively informal way to resolve this type of dispute is through mediation. Meditation allows parties to try to resolve their dispute without going to court (and with a lot less risk and expense). In mediation, a neutral third party (the mediator) meets with the two (or more) sides to help them find a mutually agreeable resolution. Mediation is particularly well suited for non-financial concerns, as is often true of neighbor disputes.

Check What Limits State or Local Laws Place on Recreational Marijuana Smoking

If informal resolution is unsuccessful or not an option, it will be important to become familiar with state and local law on marijuana use. In states like Oregon, Colorado, and Washington, for example, where marijuana is legal to smoke recreationally, the law prohibits public consumption of marijuana.

What this typically means, though, is that the consumer can smoke marijuana in a place not accessible by the general public. A back porch, out of view of the public and on private property, is unlikely to run afoul of the public consumption restriction.

Consider Whether the Neighbors' Actions Are a Legal "Nuisance"

In certain situations, marijuana smoke and odor could be considered a nuisance warranting a civil lawsuit. "Nuisance" is usually defined as something that interferes with the use of property by being irritating, offensive, obstructive, or dangerous. Nuisance cases have been brought in response to a wide range of conditions, everything from a chemical plant's noxious odors to a neighbor's dog barking.

There are two types of nuisances defined by law, public and private.

A public nuisance is an unreasonable interference with a right common to the general public, such as toxic fumes settling over a whole neighborhood. A private nuisance is a condition that is more specific to a person's use of a property (like a neighbor's barking dog). In cases where, say, the smoke is affecting only you, a claim against the neighbors for private nuisance might be your best bet.

To prove a private nuisance, you would need to show that the smoker has unreasonably interfered with your use and enjoyment of your property. The court will weigh the gravity of the harm to the utility of the conduct causing the harm. With both cigarette smoke and marijuana smoke, courts have been hesitant to declare the odor in itself a nuisance. If it's possible to prevail on a nuisance claim, you will likely have to prove some harm beyond being offended by the smell.

Some courts also have been hesitant to declare something a nuisance when it is allowed by law. What that could mean is that, unless there is a law on the books stating otherwise, a court will be hesitant to say marijuana smoke coming from private property is a nuisance because it is lawful to smoke on private property.

However, some cities are drafting ordinances that make marijuana smoke that wafts over to a neighbor's property a nuisance. If that is the case in your area, calling local law enforcement could lead to a citation against your neighbors. A citation might encourage them to start smoking elsewhere on his property, so that the smoke does not make it to your house.

If Living in a Condo or Other Common Interest Community, Check Its Rules

It might also prove helpful, if you live in a subdivision, to become familiar with the Declaration of Covenants, Conditions, and Restrictions ("CC&Rs"), as this document might include restrictions on drifting smoke and odors. If is does, you should review both the CC&Rs and bylaws regarding how to enforce such restrictions.

If there is no prohibition against wafting smoke, you might want to consider raising the issue at the next homeowners' association board meeting.

Since medical and recreational marijuana have only recently been legalized (and not yet in every state), the law relating to wafting marijuana smoke and odor is still developing. An attorney can help make sure you are up to date with the latest developments. And if you are worried about the impact on your child's health, you should talk to a medical professional.