Apartment Living: When Tokers and Non-Smokers Collide

The New York Times recently published a real estate column entitled, “When Smoke Gets in Your Apartment,” which attempts to provide renters living in multi-unit dwellings with some insight into the laws protecting them against secondhand marijuana smoke. What is most interesting about the piece, however, is that it delivers alternative methods for how the non-smoker might deal with a stoner neighbor without calling the police.

It seems a growing number of tenants in New York are confused about how cigarettes and marijuana differ when it comes to secondhand smoke wafting into their apartments. Recent anti-smoking laws have made it illegal to smoke cigarettes in many areas if the city, but some renters want to know: do these regulations apply to marijuana smoke, and what recourse can a person take against a neighboring tenant whose late-night smoke sessions constantly invade their air and space?

“No one is allowed to smoke in the common areas of a residential building with 10 or more units, but the law does not prohibit people from smoking in the privacy of their own homes (although some individual buildings do),” writes NYT columnist Ronda Kaysen. “When it comes to the secondhand smoke drifting into a neighboring apartment, the courts have frequently sided with the aggrieved neighbor, since cigarette smoke is a known carcinogen.”

Yet, as Kaysen points out, pot smoke does not fall under the same restrictions as cigarette smoke, which is mostly due to the legal restraints of both the medicinal and recreational use of the herb. “Marijuana is a little different. It is illegal to possess, although it has been decriminalized to some degree. And medical marijuana is not permitted in a smokable form. Most of the court cases about secondhand smoke in apartments, however, deal with cigarette smoke, not pot.”

Janet Ray Kalson, an attorney who represents many annoyed tenants in court, says it is easier to argue a case involving secondhand cigarette smoke because it is a proven health hazard. “Secondhand cigarette smoke is different from secondhand marijuana smoke,” she said. “Secondhand cigarette smoke is an established health hazard, and marijuana smoke is not.”

Since calling the cops on a pot smoking neighbor is not, well, very neighborly, Kaysen suggests employing some decorum in an attempt to negotiate apartment-wide harmony. “Knock on your neighbor’s door and explain politely that the odor of his smoke drifts into your apartment and causes you discomfort,” she says. “Ask the neighbor to crack a window or use an air filter when he smokes, as that might lessen the effects. Perhaps the neighbor could reserve one room in the apartment for smoking — preferably one that does not share a wall with your apartment.”

While most neighbors will likely do their best to oblige your respectful request, others may not be as receptive. For this type of unfortunate circumstance, Kaysen advises keeping a detailed journal of the neighbor’s intrusive smoking habits, including dates, times and the effect the smoke had on your health. “With that information, approach the managing agent and request help; express concerns about the habitability of your apartment and the nuisance the smoke creates,” she said. “If that does not work, you could start what is known as an HP proceeding against the landlord in housing court and see if the courts would step in and help clear the air.”

In the end, marijuana tokers and the non-smoking citizen must coexist within the collective society. Because of this, there will always be some level of conflict in regards to the issue, but as with any neighborly dispute, it is always best to defuse the situation without the police. Not only does calling the cops on a pot smoking neighbor put that person in legal jeopardy, but also the aftermath of your hasty decision could produce a hostile living environment. On the flipside, stoners should always try to be respectful of those who do not partake, within reason, of course, in an effort to keep the peace at home.

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