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Is it Legal for My Neighbor to Smoke from Their Balcony?

Currently, about 14 percent of the American population considers themselves to be regular tobacco smokers—this number is significantly lower than the peak figure of 62 percent a half-century earlier, according to data from the Center for Disease Control (CDC).

So, it’s clear that smoking is not nearly as common as it once was, which is something that is both good for public health (in general) and good for people who are not big fans of secondhand smoke. However, when you live in a city of more than 8 million people like New York, the odds are still fairly high that you will encounter cigarette and other types of tobacco smoking on a somewhat regular basis—whether you want to or not.

Depending on your view of tobacco, living next to a regular smoker can undoubtedly be a bit of a nuisance. Even if your neighbor decides to only smoke outside, it is still very likely that you will occasionally smell them indulging their habit and this smell has the potential to linger indefinitely. And in addition to the smell, studies have shown that secondhand smoke can cause lung cancer and other serious health issues, even if you have never personally smoked anything.

Asking your neighbor to smoke away from the building might work but there are many cases in which they’d simply choose to ignore you. Keeping this in mind, you might find yourself wondering: is there anything I can do to stop my neighbor from smoking? Is it legal for them to be smoking from their balcony?

Are You Allowed to Smoke from your Balcony in New York City?

The rules regarding smoking—whether indoors or outdoors—should be clearly outlined in any lease that you may sign. In fact, according to one NYC law firm, “Owners of New York City residential buildings consisting of three or more units, whether a rental, a cooperative or a condominium, must adopt a policy on smoking, and disclose it to both current and prospective residents.”

This means that whether or not smoking is allowed in your building must be established by your landlord. There is currently no law in New York City that prohibits smoking on all residential properties. While the vast majority of residential (rental) properties in New York do not allow smoking inside, whether smoking is permitted outside—in locations such as balconies, rooftops, courtyards, and others—is not always as clear.

In other words, unless it states explicitly in your lease that you are not allowed to smoke on a balcony, then you should assume that you are—and if smoking is something that tends to bother you (or you have a corresponding health risk, like asthma), this is something you should keep in mind when signing a lease.

What Should I Do if My Neighbor Won’t Stop Smoking on their Balcony?

Let’s assume you’ve already signed the lease—and your neighbor continues to smoke. Give your neighbor the benefit of the doubt and assume they are unaware of how noticeable their smoking habit actually is (many regular smokers are somewhat “immune” to the odor). Rather than souring the relationship between you and your neighbor by going straight to your landlord, consider asking them politely if they could smoke elsewhere and, when doing so, try to avoid placing all of the blame on them (even if it is all their fault). Saying things like “these walls are pretty thin” or others along those lines will likely make your neighbor much more agreeable.

But if that doesn’t work, or if you don’t feel comfortable confronting your neighbor, your landlord might have a few options. Even if the lease is smoker-friendly, other clauses, such as those related to “disseminating noxious odors”, “the warrant of habitability”, or “interfering with the enjoyment of the building” might give your landlord the ability to take action. Though they will be unlikely to immediately evict your neighbor, escalating the situation might help get your neighbor to stop. If other neighbors have also filed a complaint, then your landlord will be even more likely to act.

Are the Rules for Marijuana Any Different from the Rules for Tobacco?

Tobacco has always been legal in New York City. Marijuana—both for medical and recreational use—has only recently become legal in New York City, which makes the rules regarding balcony smoking a bit less clear.

However, generally speaking, rules regarding marijuana smoking once again remain up to your landlord to set and enforce. If you are bothered by your neighbor’s marijuana smoke—which is less likely to linger like tobacco smoke but is more likely to be pungent during consumption—you should generally utilize the same approach: check your lease, politely talk to your neighbor, and escalate the issue to your landlord, if needed. In some cases, if the neighbor has a doctor-recognized need for consumption, taking further action might be made more difficult.

Conclusion

If you are annoyed by your neighbor’s smoking habits, you are certainly not alone—smoking creates an externality that bothers a lot of people. However, whether there is much you can do about it will really depend on where you are living. This is why we strongly recommend reviewing any and all leases you might sign, whether in New York City or anywhere else.

Andrew is a freelance writer that primarily focuses on real estate and finance topics. He graduated from the University of Colorado with degrees in Finance and Political Science and has since worked in the real estate, life insurance, and digital marketing industries. When he is not writing, Andrew enjoys skiing, playing piano, painting, and spending time with his wife (Maggie) and cat (Crow).

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