Can you smoke on the balcony? Can I report my neighbour for the smoke?

Question

José Manuel Alburquerque · Accepted Answer

Yes, you can smoke on your own balcony or terrace. No law prohibits it and there is no fine for doing so, unlike in the lift, where smoking is prohibited. If a neighbour's smoke enters your home intensely and continuously, the owners' association (the “comunidad de propietarios”) can take action under article 553-40 of the “Código Civil de Cataluña”, the Catalan Civil Code, which prohibits activities contrary to normal community life. You can also bring an individual claim as an affected neighbour, but through civil proceedings and not by reporting it to the police or the town council. Occasional smoking is not usually enough. Where you can smoke and where you cannot The tobacco act says nothing about homes or their balconies or terraces, so smoking there is allowed. What it does prohibit is smoking in lifts, including the one in the building. Doing so is an infringement that can be reported. The owners' association can go somewhat further: In enclosed common areas, such as the entrance hall, the staircase or the garage, it can ban smoking in the internal rules, the building's house rules, which the owners' general meeting approves by a simple majority of those voting. Banning smoking on balconies or inside the flats could only be done in the by-laws, with the votes of four-fifths of the owners and of the participation shares. It is not clear that the courts would accept it. When smoke is a nuisance Smoking is a normal use of a home and neighbours have to tolerate the minor nuisance it causes. Things change when the smoke enters another home intensely and continuously, day after day, or when someone deliberately directs it towards a neighbour's window. There are then two routes: The owners' association's route. The president, on their own initiative or at the request of a quarter of the owners, must demand that the neighbour stop causing the nuisance, by a means that leaves a record, such as a “burofax” (a certified letter with proof of content). If it continues, the owners' general meeting can resolve to sue the neighbour so that the court orders it to stop, even immediately while the proceedings are under way. Outside Catalonia, the owners' association acts under article 7.2 of the Horizontal Property Act (“Ley de Propiedad Horizontal”). The affected neighbour's route. The Catalan code requires people to tolerate smoke coming from a neighbouring property if it is harmless or causes only minor harm, but allows a claim against smoke that causes substantial harm. As there are no set limits for tobacco smoke, the court assesses it case by case. Nobody has to put up with smoke deliberately directed at their home. Compensation for the damage can be claimed for three years from when the injured party becomes aware of the nuisance. How to prepare your case Talk to your neighbour first. Sometimes it is enough for them to smoke in another part of the balcony or at other times. Gather evidence that the smoke is entering your home and that it is not occasional, such as dated photos or videos, a log of the days and times, witnesses and, if asthma, allergies or young children are affected, medical reports. Ask the president or the managing agent to send the neighbour a formal demand by a means that leaves a record, such as a “burofax”. Before suing, the law requires an attempt at negotiation, for example with a letter proposing a specific agreement.