Is neighbour smoking a health hazard?

Can you sue if the neighbour smokes?

A recent judgment in Massachusetts had some far-reaching implications. The lawsuit was based on a Boston condominium owner suing because the tobacco fumes from the downstairs neighbour affected her asthma. She contended that the real estate agent knew of the smoking neighbour and did not reveal this information to her.

Alyssa Burrage was the plaintiff in the suit. Burrage claimed that the tobacco smoke from the condo unit beneath the one she purchased in Boston's South End aggravated her asthma. She paid more than $400,000 in 2006 for the unit.

Burrage named the following in her lawsuit:

  • The owner of the downstairs unit.
  • The roommate of the owner of the downstairs unit.
  • The condominium board.
  • The real estate agent.
  • The brokerage firm that employed the real estate agent.


It took the 14-member jury less than an hour to find for the defendants. The lawyer who defended the agent and the brokerage stressed the idea of the condominium owner seeking, in effect, to exert control over someone else's lawful behavior (smoking) in their own home.

Burrage testified that the question about the smell of smoke in the unit was discussed. The agent denied this discussion did occur. If Burrage had written documents that the agent had been misleading in their dealings then the case may have gone differently. Real estate agents carry professional insurance for their errors and omissions. This court ruled that there was not proof of misrepresentation.

If you are a smoker and live in a condo then do be aware that you need to correctly dispose of all hot ash. There have been fires in the past due to not extinguishing a butt correctly. That cigarette could be very expensive if the repayment demand that would come to your home insurance exceeds your policy limits.

It is important to note that not only the smoker but his roommate were named in this lawsuit. Hopefully both had condominium unit owner or renter insurance to pay the legal costs of the defense.

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