Can condo association intervene when renter's marijuana smoke permeates neighbor's homes?

Live in a home governed by a condominium, co-op or homeowner's association? Have questions about what they can and cannot do? Ryan Poliakoff, an attorney and author based in Boca Raton, has answers. 

Question: We live in a townhouse condo.  Our garage is next to our neighbor’s garage and attached as the first floor of our condo.  The neighbor’s unit is underneath our condo and several other condos.  Our neighbor smokes pot constantly.  All our units that are above his unit, plus our garage, now reek of the smell.

I tried talking to the neighbor and he shut the door in my face. He rents his condo (I own mine), and I tried talking to the landlord to no avail. Our management company said there is nothing we can do about it. Do we have any options? Signed, A.S.

Dear A.S.,

Ever since the state of Florida allowed doctors to recommend cannabis use to treat medical conditions, I have received an increasing number of complaints regarding the smell of cannabis smoke. I think in the past people were a lot more careful about the smell because owning cannabis was flatly illegal — but now that it can be legally used by a wide variety of people (including, if recommended by a doctor, by smoking) it seems that people are a lot less concerned about their neighbors finding out about their use, whether that use is legal or not.

In the end though, I consider this issue identical to the issue of any smoke smell. It sounds as if you find the smell of cannabis particularly offensive, but you don’t say if you’re similarly bothered by tobacco smoke (whether from cigarettes, cigars or pipes, all of which have quite different odors). Personally, I find the smell of cigarettes and cigars far more unpleasant than cannabis (but like most of us I’d always prefer no smell at all). In any event, this is a run of the mill nuisance question.

Is the smell of cannabis so strong, pervasive and constant that a person of ordinary sensibilities would find that the smell interferes with their unfettered enjoyment of their home? That’s a factual question that would be decided by a judge or jury.

While the management company says there is nothing they can do about the issue, that’s not strictly correct.

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

You and your neighbors, though, have every right to police the governing documents on your own, and your best bet is to hire your own attorney to sue the landlord and tenant to stop the nuisance behavior.

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

Do owners in a condo or HOA have to carry liability insurance?

Question: In your recent column regarding owner insurance, you failed to mention to this person if someone gets hurt on their property they are liable, and this is why you need insurance. Signed, M.K.

Dear M.K.,

Of course there are a lot of good reasons to carry insurance, and this is a good opportunity to clarify for people that there are many different types of insurance, as well. Most of the time with condominiums we concentrate on casualty insurance — the insurance that protects your property (both real and personal) if you have a fire, or get hit by a hurricane, or if there is a catastrophic leak, or some other hazard. There are also special types of casualty insurance, such as flood insurance, which protects against damage from 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 another person, 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 or the other type of insurance, and you can also typically buy one without the other. There is also umbrella insurance, which is a high-dollar insurance policy that covers liability after a primary liability policy is exhausted; specialty insurance protecting jewelry and other high-cost items, particularly against theft; car insurance; boat insurance, etc.

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

I can’t begin to tell you how many people contact me because they get sued when they accidentally cause damage to their neighbor (leaving their sink running or starting a fire, for example) and they chose not to carry liability insurance— so they have no protection at all.

Sadly, the cost of insurance is so high that many people can’t afford the insurance and can’t afford the cost of the damage that might occur, either, making everyday life a gamble.

Ryan Poliakoff, a partner at Poliakoff Backer, LLP, is a Board 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 condocolumn@gmail.com. Please be sure to include your location.

This article originally appeared on Palm Beach Post: Neighbor's pot smoke is polluting my home, what can condo board do?