The Neighbor’s Smoking Weed: What O’ What To Do?
What does the law say about smoking cannabis in the privacy of one’s home? Can the neighbor stop the cannabis consumer? Should the neighbor have the right to stop this otherwise innocuous activity?
Of course, depending on whether as the reader you would be the neighbor enjoying the marijuana, or the neighbor bothered by the smell of the weed, you will read this article with a vastly different perspective. Regardless, the law remains the same and the purpose of this piece is to explain how our legal system balances the conflicting interests of two parties, each with a reasonably good claim.
First, what if any right does a neighbor have to stop his neighbor from smoking weed (assuming cannabis legalization in the State) in his own home? Shouldn’t an individual do as he/she pleases in the privacy of his home without being harassed by a nosy neighbor? While this seems rather obvious and intuitive, take a moment to consider how you would feel if you were the nosy neighbor. For whatever reason, you absolutely despise the smell of cannabis and no matter how many windows you close, the smell of your neighbor’s weed wafts up into your house - it is entirely inescapable.
What’s tricky about this scenario is that the neighbor is not directly trespassing or physically interfering with the neighbor in any way and yet he is proving to be a nuisance. What if anything can be done?
A Theoretical Marijuana Lawsuit
Facts: Plaintiff, a marathon runner named Lewis, owns a house adjacent to Defendant, Rosen. Plaintiff recently constructed an add-on garage at the back of his house and abutting Defendant’s porch to use as a training center to prepare for the upcoming marathon. Defendant loves smoking marijuana on his porch (a perfectly legal activity in his recreational State) as he finds it both relaxing and spiritually satisfying. Unfortunately, the immense amount of smoke from the marijuana (Rosen really enjoys the plant) manages to travel directly into Plaintiff’s garage, which, Plaintiff considers a nuisance. Importantly, Defendant notes that he has been smoking in a similar manner for the last 10 years and has not received any substantial complaints to date. Only after this new garage was built did the “nuisance” claim arise.
Issues: Does the fact that the smell has been present and not a subject of a complaint about such a substantial period of time effectively confer a “right” to Rosen to smoke the cannabis and thus immunize him from nuisance charges?
Ruling: Well, it depends :).
What is a Nuisance?
Principally, “nuisances” consist of some sort of non-physical invasion of an individual’s property that would not quite qualify as bona fide trespassing.
Perhaps the most typical examples of nuisance claims involve issues of noises, vibrations, fumes, and other immaterial but nevertheless bothersome intrusions.
It is precisely a nuisance and not an assault because no direct physical harm has taken place.
What Legal Standard Must be Met to Satisfy a “Nuisance” claim?
In order to prevail on a nuisance claim, the plaintiff must
FIRST demonstrate the specific act that the Defendant has been alleged to commit and
SECOND, illustrate that this act caused harm. Presently, the judge will look to whether in fact, the neighbor was smoking weed and whether the smell of the weed constituted a harm.
The judge will then consider the following questions: Is it (the weed smoking) a substantial interference with the neighbor’s ability to live his life? Is this interference reasonable? What is the nature of the neighborhood and how “normal” is this activity for the neighborhood? If the marijuana smoke does, in fact, violates the plaintiff’s rights, what would be an appropriate remedy? An injunction? Damages? Both?
The Legal Analysis
The crux of a nuisance case is the “unreasonableness” of the interference. Simply, the calculus used to find nuisance in balancing land use disputes is “reasonable use.” Of course, what is reasonable in one area/city/neighborhood may not necessarily be “reasonable” in another area. For example, it would undoubtedly be unreasonable, if not illegal, to smoke marijuana in your house if you live right next door to an elementary school. Conversely, if you lived in a wooded area far away from children it might not be quite as unreasonable.
Interestingly, perhaps more exotic but economic way to determine “reasonableness” is to consider whether the loss that the plaintiff sustains is greater than the cost to the defendant (if he were to stop engaging in this nuisance). The objective of the legal system that would be to avoid the more serious harm.
Neighbors Smoking Weed – What to do in the Real World
Ultimately, turning to the courts should really be the last stop. The neighbors should make an effort to reason with one another and reach an agreement that satisfies both parties. Perhaps the smoking neighbor will agree to only smoke during hours of the day that the other neighbor is not home and only during certain times of the week. Similarly, the complaining neighbor may agree to get out of the house during those hours so the smoke does not bother him. Life is all about compromises – a good compromise is whether neither party is fully satisfied.
