You could pursue any or all the three possible strategies outlined below. (Note that this information is specific to people living in a single-family home in California. If you live in an apartment or a condominium and are affected by drifting secondhand smoke, see separate questions regarding these situations.)

1. Create a voluntary agreement with your smoking neighbor to limit where he or she smokes;
2. Encourage your Homeowners’ Association (HOA) to adopt a smokefree policy (if there is one); and/or
3. File a lawsuit against the HOA (if there is one) and/or your smoking neighbor based on theories such as nuisance, breach of contract, or trespass.

1. VOLUNTARY AGREEMENT

One option is for you to try and reach a voluntary agreement with your smoking neighbor. The neighbor could, for example, agree to limit where he smokes or the times when he smokes. Such an agreement is not legally binding. Americans for Nonsmokers' Rights (ANR) has a publication called "The Smoker Next Door: Handling Unwanted Tobacco Smoke in Apartments and Condominiums,” which can be especially useful for pursuing a voluntary agreement, even though it is designed for residents of multi-unit housing.

Although you and your neighbor could work out an agreement on your own, there are mediation and dispute resolution programs that can assist people with disputes like this. See TALC’s directory of California Legal & Dispute Resolution Referral Resources for alternative dispute resolution services available in every county.

2. SMOKEFREE POLICY

Many single-family houses are located in planned developments that are controlled by an HOA. The HOA has the legal ability to prohibit smoking in outdoor areas of the neighborhood. For details on how an HOA could adopt such a policy, see TALC’s publication “How to Make a Condo Complex Smokefree.” (Although it is designed for condominiums, it also applies to other types of common interest developments, such as planned subdivisions.)

If your home is not governed by an HOA, you would not be able to pursue this option.

3. LAWSUIT

Another option is to bring a lawsuit against the HOA and/or the neighbor. TALC’s publication “Options for Condo Owners Suffering from Drifting Secondhand Smoke” provides information about this option. (Although it is designed for condominiums, it also applies to other types of common interest developments, such as neighborhoods.) If you decide to pursue a lawsuit, TALC’s directory of California Legal & Dispute Resolution Referral Resources lists lawyer referral services. TALC does not provide direct legal services to clients, so we would not be able to represent you in a lawsuit.

If you do not have an HOA, you would only be able to sue your neighbor.

Another avenue you might want to pursue is filing a lawsuit in small claims court. In this case, you would represent yourself and not have to hire an attorney. The California Department of Consumer Affairs developed a helpful handbook, “The Dos and Don'ts of Using the Small Claims Court,” to answer questions about the process of resolving a dispute in small claims court.

TALC wishes you luck with this difficult situation.