Q. I live in a condo and my neighbor downstairs from me is constantly smoking. I brought it to the attention of management and nothing has been done. What are my options as an owner: do I bring legal action against management or do I take legal action against the neighbor where the cigarette smoking is coming from?
—Driven Mad by the Smoke
A. Attorney Joan Wright of Carson City-based firm Allison Mackenzie responds: “The answer to your concerns may be found in one or more of a few different sources.
“First, you should review the documents governing your condo owners association, including the CC&Rs and any Rules and Regulations adopted by your association. Nevada Revised Statutes (NRS) Chapter 116 authorizes a homeowners or condo owners association to adopt and amend, from time to time, rules and regulations affecting the way owners, their tenants, and guests use the property. It is not uncommon for rules and regulations of condominium associations to prohibit smoking in the units if it will adversely affect neighboring units. If your association’s rules and regulations or CC&Rs contain a prohibition on smoking, the association’s board may impose sanctions or commence a legal action to enforce the prohibition.
“However, pursuant to NRS 116.3102, the board does not have to enforce the prohibition, even if a violation exists, if (a) the association’s legal position does not justify taking enforcement action; (b) the rule being enforced is inconsistent with current law; (c) the violation is not so objectionable to a reasonable person that it would justify expending the association’s resources; or (d) it is not in the association’s best interests to pursue enforcement. In determining whether the board’s decision not to pursue enforcement complies with the foregoing, the sole question is whether or not the board is acting in an arbitrary manner. If the board is acting arbitrarily in refusing to enforce the prohibition, you might be entitled to relief and should contact the Nevada Real Estate Division’s Ombudsman’s office or an attorney. Independent of the board, you may sue to enforce the provisions of the project documents, but you will have to hire your own attorney and bear the costs of that suit unless or until you are successful and obtain an award of attorneys’ fees and costs.
“If there is no written prohibition against smoking in your association’s governing documents or if the association’s board is refusing to enforce any written prohibition against smoking, you may also be able to find relief in the State’s laws against nuisance, which are found in NRS Chapter 40. A nuisance, under Nevada law, is ‘anything which is injurious to health, or indecent and offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.’ Your neighbor’s smoking habit likely fits. NRS 40.140 authorizes a person whose personal enjoyment of property is lessened to bring an action in court against the person causing the nuisance. The action might seek to stop the nuisance from occurring as well as recovery of any monetary damages caused by the nuisance.
“There also could be a state or local statute or ordinance prohibiting smoking outside of a building or within so many feet of a building used as a residence. In that case, you would file a report with the police and ask the district attorney to enforce the law. It is however within the discretion of a law enforcement officer to decide not to prosecute.”