Secondhand Smoke Is Not Nuisance

Schuman v. Greenbelt Homes, Inc., 212 Md. App. 451, 69 A.3d 512 (Md. Ct. Spec. App. June 27, 2013) (cert. denied Oct. 21, 2013)

Use Restrictions: A Maryland appeals court affirmed a ruling that secondhand smoke from a neighbor’s unit did not constitute a legal nuisance.

Greenbelt Homes, Inc. (Greenbelt) is a housing cooperative in Greenbelt, Md. The cooperative is a development of two-story townhomes that share common walls. Each resident is a member of the cooperative and owns a share of the corporation. A mutual ownership contract with Greenbelt gives the member the right to occupy a particular unit.

David Schuman has been a member of Greenbelt since 1995. His unit immediately adjoins the unit occupied by Mr. and Mrs. Popovic, who moved in the year after Schuman. When the Popovics moved in, Schuman complained to Greenbelt’s management about their cigarette smoking. Schuman was concerned that smoke from their unit was entering his home. Greenbelt sealed the cracks between the two units to try to mitigate Schuman’s exposure to smoke. Afterward, it hired an industrial hygienist to test the air in Schuman’s unit. At that time, no detectable level of nicotine was found. Schuman indicated that the problem was resolved.

In 2008, Schuman began renovations on his unit. During the renovations, some drywall was removed from the wall shared with the Popovics. When he began to smell cigarette smoke in his unit again, Schuman sent complaints to Greenbelt and the Popovics. The Popovics purchased an air filter, but Schuman still smelled smoke. Discussions among Greenbelt, the Popovics and Schuman failed to resolve the problem.

Greenbelt sent Schuman a letter explaining that it would seal any areas in Schuman’s unit, but it would not ask the Popovics to stop smoking because the cooperative was not a smoke-free community.

In 2010, Schuman sued Greenbelt for negligence and breach of the implied covenant of quiet enjoyment. He also sued the Popovics for breach of contract, trespass, nuisance and negligence. He sought a declaration that smoking was a nuisance under Greenbelt’s ownership contract and an injunction preventing the Popovics from smoking in their unit.

Mrs. Popovic became ill, and Mr. Popovic stopped smoking inside their unit. However, he continued to smoke briefly in the evenings on his patio. Subsequently, the Popovics consented to an injunction against smoking inside their unit, but the trial court denied Schuman’s request for an injunction to prevent the Popovics from smoking outside. Schuman appealed.

Greenbelt’s membership contract provides that members will not engage in activities that are a nuisance, annoying or inconvenient to other members. A legal nuisance is “an interference with the enjoyment of one’s property when that interference is substantial and unreasonable such that it would be offensive or inconvenient to the normal person.” Nuisance per se is where the act or thing is a nuisance all the time under all circumstances. Nuisance in fact is where the act or thing becomes a nuisance by reason of the circumstances, location or surroundings.

The appeals court determined that the evidence presented did not show that smoking was a nuisance per se. While Maryland law regulates public and workplace smoking, smoking in private homes is specifically exempted. In addition, Greenbelt had always permitted smoking, so the mere act of smoking on one’s patio is unlikely to be substantially and unreasonably offensive to all persons at all times.

The appeals court further found that Schuman had not presented sufficient evidence that Mr. Popovic’s smoking was a substantial and unreasonable interference with the use and enjoyment of his home to constitute nuisance in fact. For this type of nuisance, the court must look at what would be unreasonable to ordinary people in all circumstances; it is not enough for a particular person to be offended, annoyed or peculiarly sensitive.

The appeals court noted that the discomforts associated with an urban environment where people live in close proximity will be viewed as nuisances only if they exceed what is ordinarily and reasonably expected in the community and cause unnecessary damage or annoyance.

In this case, the only real evidence of a problem was the odor. While Schuman complained of health problems, he did not produce any evidence of an unfavorable health condition or other real injury. He also did not show that the smoking diminished his property value.

The court concluded that Schuman was not being harmed if shutting his window and turning on a fan could stop the smell. It also might logically be concluded that Schuman’s problem was resolved when Popovic stopped smoking inside his unit. The appeals court noted that, while Schuman did not have a problem with both the Popovics smoking inside and outside their home for more than a decade, he now argues that even one cigarette is too many.

The appeals court held that the trial court did not err in finding that Mr. Popovic’s smoking did not constitute a legal nuisance, and the judgment was affirmed.

Budget-Conscious Christmas Party Tips

If you’re hosting a Christmas party this year, there are ways to keep the costs down and your guests happy without cutting corners on any of the festive decor or menu items. Here are a few tips to keep in mind while you’re prepping to entertain.

When it comes to keeping decoration expenses low, focus your efforts on three important areas of the home — the dining table, bathroom and entryway. Use a few elegant candles and ornaments to make your guests feel welcome, not overwhelmed.

As for serving solutions, use an old catering trick. Take paint cans, phone books or empty flower pots and arrange them on your dining table. Then cover with a beautiful tablecloth to make instant risers for food and platters.

To save even more money, consider serving hors d’oeuvres in two courses. Guests will fill up, and you won’t have to spend as much on pricier appetizers.

So, as you’re putting together your holiday party, make sure to use these simple suggestions to trim your event budget. They’ll ensure that your gathering is frugally festive.