Tenants smoking

Guest101

Soundgirlrocks wrote: »

"Private Nuisance
A private nuisance is an interference with a person's enjoyment and use of his land. The law recognizes that landowners, or those in rightful possession of land, have the right to the unimpaired condition of the property and to reasonable comfort and convenience in its occupation.
Examples of nuisances interfering with the comfort, convenience, or health of an occupant are foul odors, noxious gases, smoke, dust, loud noises, excessive light, or high temperatures." Legal Dictionary

I'm surprised you missed the obvious bit here about this being a communal area and not the OPs land.

danslenoir

This might be worth a read


http://ash.org.uk/files/documents/ASH_827.pdf

Local Authority assistance
Local authorities have a duty to take such steps as are ‘reasonably practicable’ to investigate complaints of ‘statutory nuisance’ as set out in the Environmental Protection Act 1990. This duty will usually be carried out by Environmental Health Officers (EHOs).

Smoke passing from one premises to another (other than smoke from a chimney) may constitute a Statutory Nuisance under S 79 1(b) of this Act. However, when assessing whether a complaint can be classified as a “nuisance” EHOs must balance differing interests and take into account what is considered to be “reasonable”. If the EHO determines that tobacco smoke is permeating from one building into another the officer must determine whether the effect of the smoke permeating is such as to be prejudicial to health or a nuisance.

An assessment of nuisance must take into account the standards of an average person and not that of someone who is hypersensitive. The duration, frequency, severity, time of day and locality also have a bearing on the assessment of whether there is an actionable nuisance. The second arm of Statutory Nuisance it that of prejudice to health. This is an absolute and does not take into account reasonableness. However it demands more than just discomfort or annoyance; it requires evidence of the probability that disease will result in the particular circumstances. Therefore, before the local authority can take any action it must be satisfied that there is a case to answer. Note, this will inevitably vary from one authority to another.

If you think this smoke is having a detrimental effect on your asthma/health, perhaps you could speak to your GP and see if they will write to your council to support your claim. Your council may then decide it has grounds to take action.

As otherwise suggested, your neighbours may have a 'no-nuisance' clause in their tenancy agreement, but I guess that would be down to the landlord to try and enforce and they may not be sympathetic to your case.

Guest101

danslenoir wrote: »

This might be worth a read


http://ash.org.uk/files/documents/ASH_827.pdf

Local Authority assistance
Local authorities have a duty to take such steps as are ‘reasonably practicable’ to investigate complaints of ‘statutory nuisance’ as set out in the Environmental Protection Act 1990. This duty will usually be carried out by Environmental Health Officers (EHOs).

Smoke passing from one premises to another (other than smoke from a chimney) may constitute a Statutory Nuisance under S 79 1(b) of this Act. However, when assessing whether a complaint can be classified as a “nuisance” EHOs must balance differing interests and take into account what is considered to be “reasonable”. If the EHO determines that tobacco smoke is permeating from one building into another the officer must determine whether the effect of the smoke permeating is such as to be prejudicial to health or a nuisance.

An assessment of nuisance must take into account the standards of an average person and not that of someone who is hypersensitive. The duration, frequency, severity, time of day and locality also have a bearing on the assessment of whether there is an actionable nuisance. The second arm of Statutory Nuisance it that of prejudice to health. This is an absolute and does not take into account reasonableness. However it demands more than just discomfort or annoyance; it requires evidence of the probability that disease will result in the particular circumstances. Therefore, before the local authority can take any action it must be satisfied that there is a case to answer. Note, this will inevitably vary from one authority to another.

If you think this smoke is having a detrimental effect on your asthma/health, perhaps you could speak to your GP and see if they will write to your council to support your claim. Your council may then decide it has grounds to take action.

As otherwise suggested, your neighbours may have a 'no-nuisance' clause in their tenancy agreement, but I guess that would be down to the landlord to try and enforce and they may not be sympathetic to your case.

This isn't from one building to another, this is from communal area (which sounds like it's publically accessible), again this is a nonsense.

danslenoir

Guest101 wrote: »

I'm surprised you missed the obvious bit here about this being a communal area and not the OPs land.

The smoke is entering OPs flat. That is OP's land, not communal land.

bouicca21

Like freeisgood, the smell of cigarette smoke makes me retch and I have always avoided anywhere where smokers congregate. And like OP I am asthmatic. But in this case the smokers are out in the open, where they are perfectly entitled to smoke, so the logical thing surely is to keep that window shut when they do so.

Guest101

danslenoir wrote: »

The smoke is entering OPs flat. That is OP's land, not communal land.

Here is the whole article, so unless it is happening on the OPs land, the following applies. But yes, quoting a small section does indeed make a better argument....
Nuisance

A legal action to redress harm arising from the use of one's property.
The two types of nuisance are private nuisance and public nuisance. A private nuisance is a civil wrong; it is the unreasonable, unwarranted, or unlawful use of one's property in a manner that substantially interferes with the enjoyment or use of another individual's property, without an actual Trespass or physical invasion to the land. A public nuisance is a criminal wrong; it is an act or omission that obstructs, damages, or inconveniences the rights of the community.
For the below to apply the nuisance must be Unreasonable, Unlawful or unwarranted

Private Nuisance



A private nuisance is an interference with a person's enjoyment and use of his land. The law recognizes that landowners, or those in rightful possession of land, have the right to the unimpaired condition of the property and to reasonable comfort and convenience in its occupation.
Examples of private nuisances abound. Nuisances that interfere with the physical condition of the land include vibration or blasting that damages a house; destruction of crops; raising of a water table; or the pollution of soil, a stream, or an underground water supply. Examples of nuisances interfering with the comfort, convenience, or health of an occupant are foul odors, noxious gases, smoke, dust, loud noises, excessive light, or high temperatures. Moreover, a nuisance may also disturb an occupant's mental tranquility, such as a neighbor who keeps a vicious dog, even though an injury is only threatened and has not actually occurred.
An attractive nuisance is a danger likely to lure children onto a person's land. For example, an individual who has a pool on his property has a legal obligation to take reasonable precautions, such as erecting a fence, to prevent foreseeable injury to children.


Legal Responsibility



A private nuisance is a tort, that is, a civil wrong. To determine accountability for an alleged nuisance, a court will examine three factors: the defendant's fault, whether there has been a substantial interference with the plaintiff's interest, and the reasonableness of the defendant's conduct.
Fault Fault means that the defendant intentionally, negligently, or recklessly interfered with the plaintiff's use and enjoyment of the land or that the defendant continued her conduct after learning of actual harm or substantial risk of future harm to the plaintiff's interest. For example, a defendant who continues to spray chemicals into the air after learning that they are blowing onto the plaintiff's land is deemed to be intending that result. Where it is alleged that a defendant has violated a statute, proving the elements of the statute will establish fault.
Substantial Interference The law is not intended to remedy trifles or redress petty annoyances. To establish liability under a nuisance theory, interference with the plaintiff's interest must be substantial. Determining substantial interference in cases where the physical condition of the property is affected will often be fairly straightforward. More challenging are those cases predicated on personal inconvenience, discomfort, or annoyance. To determine whether an interference is substantial, courts apply the standard of an ordinary member of the community with normal sensitivity and temperament. A plaintiff cannot, by putting his or her land to an unusually sensitive use, make a nuisance out of the defendant's conduct that would otherwise be relatively harmless.
Reasonableness of Defendant's Conduct If the interference with the plaintiff's interest is substantial, a determination must then be made that it is unreasonable for the plaintiff to bear it or to bear it without compensation. This is a Balancing process weighing the respective interests of both parties. The law recognizes that the activities of others must be accommodated to a certain extent, particularly in matters of industry, commerce, or trade. The nature and gravity of the harm is balanced against the burden of preventing the harm and the usefulness of the conduct.
The following are factors to be considered:

• Extent and duration of the disturbance;
• Nature of the harm;
• Social value of the plaintiff's use of his or her property or other interest;
• Burden to the plaintiff in preventing the harm;
• Value of the defendant's conduct, in general and to the particular community;
• Motivation of the defendant;
• Feasibility of the defendant's mitigating or preventing the harm;
• Locality and suitability of the uses of the land by both parties.

Zoning boards use these factors to enact restrictions of property uses in specific locations. In this way, zoning laws work to prohibit public nuisances and to maintain the quality of a neighborhood.
Defenses



In an attempt to escape liability, a defendant may argue that legislation (such as zoning laws or licenses) authorizes a particular activity. Legislative authority will not excuse a defendant from liability if the conduct is unreasonable.
A defendant may not escape liability by arguing that others are also contributing to the harm; damages will be apportioned according to a defendant's share of the blame. Moreover, a defendant is liable even where his or her actions without the actions of others would not have constituted a nuisance.
Defendants sometimes argue that a plaintiff "came to a nuisance" by moving onto land next to an already operating source of interference. A new owner is entitled to the reasonable use and enjoyment of his or her land the same as anyone else, but the argument may be considered in determining the reasonableness of the defendant's conduct. It may also have an impact in determining damages because the purchase price may have reflected the existence of the nuisance.

davidmcn

Guest101 wrote: »

Here is the whole article, so unless it is happening on the OPs land, the following applies. But yes, quoting a small section does indeed make a better argument....

I presume from the reference to "zoning boards" and the spelling that this has been sourced from the colonies?

Guest101

davidmcn wrote: »

I presume from the reference to "zoning boards" and the spelling that this has been sourced from the colonies?

I believe it is a general summary, however if you go to the page you will see all the sources etc.


it is broadly similar to https://en.wikipedia.org/wiki/Nuisance_in_English_law

silverwhistle

I presume that all the less than sympathetic supplies are from smokers who don't appreciate or ignore the impact their smoke has on others.

They all seem to be ignoring that the simplest remedy would be for the smokers to move away from that position, which would help their neighbours. Instead they seem to be delighting in telling our asthmatic OP that 'you can't make me do it', without any ounce of sympathy or any helpful remedy.

Guest101

silverwhistle wrote: »

I presume that all the less than sympathetic supplies are from smokers who don't appreciate or ignore the impact their smoke has on others.

They all seem to be ignoring that the simplest remedy would be for the smokers to move away from that position, which would help their neighbours. Instead they seem to be delighting in telling our asthmatic OP that 'you can't make me do it', without any ounce of sympathy or any helpful remedy.

Actually I cant don't like people who moan for the sake of it, but do nothing to remedy their own situation.


Close the window. Sorted.