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To preface this, I'm looking specifically for California Law. I'm aware that medical marijuana is legal in the state of California, and am wondering if any other laws apply, similarly to tobacco laws.

One of my neighbors, although I don't know which one, smokes marijuana on a regular basis. Almost every night, I can smell it. I've identified that the smell appears to be coming down through my kitchen vent, as the smell always originates from the kitchen area, and is strongest near the vent. There does not appear to be any smell in the hallway, so my guess is that a downstairs neighbor is smoking and attempting to ventilate their apartment via their kitchen vent.

I've contacted my landlord already, who has informed me that there is not much he can do aside from sending out a notice to everyone "reminding everyone that smoking of any kind is a violation of the lease agreement," and that he cannot identify who is smoking, or where the smoke is coming from. He told me that he especially cannot do anything because medical marijuana is legal.

So, my question is: is there anything I can do short of moving out (I don't really want to move out)? I've read a little on tobacco laws, and, although tobacco is legal, allowing tobacco smoke to travel between apartment units may breach the habitability requirements. Is there any such precedent for marijuana cases?

  • Also under federal law pot is still illegal, so you could contact the DEA. – a coder Mar 17 '16 at 7:33
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    @acoder: My understanding is that the DEA has a policy of not pursuing individual medical marijuana users who are complying with their state laws. So I don't think that suggestion will help. – Nate Eldredge Mar 17 '16 at 15:31
  • Federal law has to follow state law last time i checked. – a coder Mar 17 '16 at 17:31
  • I would guess that you'd have to pursue this the same way that you would pursue cigarette smoke issues. I found this site that might have some suggestions: changelabsolutions.org/tobacco-control/question/…. – childofsoong Mar 17 '16 at 19:06
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    @acoder: I think everyone agrees that federal law prohibits the possession of marijuana, and that federal law pre-empts state law when they conflict. So the DEA definitely has the legal authority to arrest and prosecute the neighbor (assuming there is probable cause). But they also can, at the government's discretion, decide not to do so. And what we are saying is that government policy is that in fact they will not pursue such violations. So although there is a federal law prohibiting and penalizing the neighbor's conduct, you should not expect it to be enforced. – Nate Eldredge Mar 18 '16 at 2:01
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There are nuisance lawsuits and constructive eviction arguments--you can check with your local attorneys and perhaps tenants' rights organizations for detailed information. Just because marijuana is legal under state law (if certain steps were followed) does not mean that your landlord or another tenant can interfere with your use and enjoyment of your home. Civil consequences--such as a court order to the smoker to stop smoking, money damages, or a partial abatement of your rent until the smoking stops--may be achievable.

It is important to follow the rules for your jurisdiction closely when starting a legal action, so you should talk to an expert in your jurisdiction if you want to pursue legal action.

But where possible, most people deal with this kind of thing by moving.

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For most states, someone has created a cause of action book describing the causes of action recognized in that state. For something like this, you can go through the book and identify as many causes of action as possible.

There are a at least two classes of causes of action that are likely to apply in your case:

1) You are likely to have claims against your landlord for breach of warranties (e.g. habitability).

2) You are likely to have claims against your neighbor for (a) trespass; (b) trespass to chattel; (c) battery; and (d) negligence.

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