The neighbor’s pot smoke is polluting my house, what can the board of directors of the co-ownership do?

Ryan Poliakoff
| Special to the Palm Beach Post

Do you live in a house governed by a condominium, cooperative or homeowners association? Do you have questions about what they can and can’t do? Ryan Poliakoff, a Boca Raton-based attorney and author, has answers.

Question: We live in a shared ownership house. Our garage is adjacent to our neighbor’s garage and is the first floor of our condo. The neighbor’s unit is under our condo and several other condos. Our neighbor smokes weed all the time. All of our units above his unit, as well as our garage, now smell.

I tried to talk to the neighbor and he closed the door in my face. He rents his condo (I own mine) and I’ve tried talking to the owner to no avail. Our management company said there was nothing we could do about it. Do we have options? Signed, AS

Dear AS.,

Since the State of Florida allowed doctors to recommend cannabis use to treat medical conditions, I have received an increasing number of complaints about the odor of cannabis smoke. I think in the past people were a lot more careful about the smell because possessing cannabis was downright illegal – but now that it can be legally consumed by a wide variety of people (including, if a doctor recommends it , while smoking), it seems that people are much less concerned about their neighbors finding out about their use, whether that use is legal or not.

Ultimately, I consider this problem to be the same as any smoke odor. It sounds like you find the smell of cannabis particularly offensive, but you don’t say whether you’re also bothered by tobacco smoke (whether from cigarettes, cigars, or pipes, all of which have very different smells). ). Personally, I find the smell of cigarettes and cigars much more unpleasant than cannabis (but like most of us, I would still prefer to have no smell at all). Regardless, this is a trivial and harmful question.

Is the smell of cannabis so strong, pervasive and constant that a person of ordinary sensibilities would find the smell prevents them from fully enjoying their home? This is a factual question that would be decided by a judge or jury.

Although the management company claims that there is nothing they can do about this problem, this is not entirely accurate.

If the governing documents have a nuisance provision, they can control it – and that’s true, even if that person has a recommendation to consume or smoke cannabis (this would not outweigh the nuisance caused to other owners , and of course there are many ways to do this). consume cannabis that does not require combustion). However, nuisance cases are extremely difficult to pursue, and it would have to be a truly extreme situation for the association to pursue.

However, you and your neighbors have every right to review the governing documents yourself, and your best bet is to hire your own attorney to sue the landlord and tenant to stop the harmful behavior.

The other possibility is that the declaration prohibits illegal behavior. It’s possible that this person is using cannabis illegally, but that would be very difficult to know – but it might be worth including it in a nuisance suit so you can have different avenues of attack.

Do condo or HOA owners need to carry liability insurance?

Question: In your recent column regarding homeowners insurance, you failed to mention to this person that if someone is injured on their property, they are responsible, and that is why you need insurance. Signed, MK

Dear MK,

Of course, there are many good reasons to buy insurance, and this is a good opportunity to clarify to people that there are many types of insurance as well. Most of the time with condos, we focus on property and casualty insurance – insurance that protects your property (both real and personal) in the event of a fire, hurricane, catastrophic leak, or other hazard. There are also special types of property insurance, such as flood insurance, which protects against damage caused by rising water, rather than wind-driven rain or a pipe leak.

Then there is liability insurance – the type of insurance that protects you if you cause damage or injury to others, usually due to your negligence. This is the type of insurance that would cover someone who is sued because a guest is injured in their home.

Not all governing documents require one type of insurance or the other, and you can also usually purchase one without the other. There is also umbrella insurance, which is an expensive insurance policy that covers liability after a primary liability policy has been exhausted; specialized insurance protecting jewelry and other expensive items, particularly against theft; car insurance; boat insurance, etc.

Whether or not to purchase a specific type of insurance is a personal business decision measuring the risk of loss versus your ability to cover that loss.

I can’t begin to tell you how many people contact me because they are being sued when they accidentally cause damage to their neighbor (by leaving their sink running or starting a fire, for example) and they have chosen not to take out civil liability insurance. no protection at all.

Unfortunately, the cost of insurance is so high that many people cannot afford to purchase insurance or pay for damages that may occur, making daily life a gamble.

Ryan Poliakoff, partner at Poliakoff Backer, LLP, is a certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of “New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living.” Email your questions to [email protected]. Be sure to include your location.