Monday, July 1, 2013

Your Maryland home can still be your smoke filled castle.

June 27, 2013 is the day you came dangerously close to losing the right to smoke in the privacy of your own home.  This little decision almost slipped by me, except that I was finally catching up on a week's worth of professional reading after a very active day in court.

In the case called Schuman v. Greenbelt Homes, Mr. Schuman sued his neighbors and others for nuisance caused by his neighbors act of smoking cigarettes in the privacy of their own home, and on the rear patio behind their home. Mr. Schuman complained that odor and nicotine invaded his space, increased his risks for illness related to second hand smoke, and diminished his property values.  Mr. Schuman sought a court order barring his neighbors from smoking in their own home, or on their own patio.

Don't laugh, Mr. Schuman could have been YOUR neighbor, and he may not have liked your charcoal smoker or the scented oil in your tiki torches.

The homeowner's cooperative to which both parties belonged sealed cracks between the adjoining units, and the smoking neighbors even consented to Mr. Schuman's demands that they cease the lawful activity of smoking cigarettes in their own house.

The smoking only continued on the outdoor patio of the neighbor's unit (a few cigarettes each night).  Mr. Schuman continued to complain that even with his windows closed he could smell cigarettes (contrary to other neighbors testimony that smoke did not penetrated their closed windows).

Mr. Schuman's circuit court lawsuit against his neighbors alleged, among other things, that the lawful activity of smoking on private property (a place where it is not regulated by the government) unreasonably interfered with his use and enjoyment of his property. Trial lasted at least a week, and included medical and air quality expert testimony. Mr. Schuman argued that even one cigarette on the patio was too much, and that he refrained from leaving his house for fear that his neighbor would light up and smoke.

As silly as all this sounds, there is a growing body of case law across the country finding that cigarette odor may be, at times, an unreasonable interference with the property rights of others.  Page 22 of the court opinion collects some of the cases for you. And it is in these obscure decisions where your property rights are eroded, over time.

But to Maryland's credit, smoking on your patio is not yet a nuisance which diminishes the use and enjoyment of an adjoining property. This court noted that such a ruling (on the facts of this case, at least) would effectively outlaw smoking in the privacy of your home, a place that even Maryland's legislature has not yet attempted to reach.

We live in a complex world.  This case preserves some balance between the property rights of adjacent owners.....for now.