Neighbors smoke on the balcony - smoke goes into the apartment: what to do, how to deal with it

Is it possible to smoke on the balcony of your apartment under the new law in 2021 and how to defend your own rights to your neighbors and others? Similar questions are increasingly being asked to us in comments, PMs and the VK group. And therefore, with this article, the authors of the “Legal Ambulance” website are opening a new section where each visitor will be able to contribute to the knowledge base of our blog by asking their question and receiving a detailed answer from a qualified specialist.

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So, according to the legislation in force in the Russian Federation, smoking is prohibited in public places, on beaches, playgrounds and other similar facilities. At the same time, a loggia or balcony is the property of a citizen, which means that he can legally use it for a variety of purposes:

• for storing things and products (for example, canning);
• for landscaping;
• formation of a recreation area, etc.

Thus, according to survey data, up to 95% of smokers use this area for smoking, which is not prohibited by law , subject to other features relating to the freedom of others.

Simply put, the legislation of the Russian Federation provides for the interests of neighbors who may consider their neighbor’s bad habit unnecessary and try to limit such actions either peacefully or by contacting law enforcement agencies and even the court. So, let's see how the law of October 1, 2019 spells out the ban on smoking on the balcony?

Law on smoking in an apartment building

When talking about the law on smoking in MKD, it is worth keeping in mind several acts at once:

• Federal Law “On protecting the health of citizens from the effects of environmental tobacco smoke and the consequences of tobacco consumption” dated February 23, 2013 N 15-FZ;
• Article 23 of the Code of Administrative Offenses of the Russian Federation;
• Article 36 of the Housing Code of the Russian Federation;
• Decree of the Government of the Russian Federation of August 13, 2006 N 491.

The law on smoking in apartment buildings was adopted in 2013. From now on, everyone who allows themselves to smoke in common areas and elevators is declared legally. For violation they face administrative liability.

Changes in legislation

A new law has been introduced in Russia that updates fire regulations.
Amendments were made to eight paragraphs of the regulatory legal act. In order not to violate the regime, it is important to know what is new in the law. The Ministry of Emergency Situations of the Russian Federation noted that in order to reduce the number of fires, it was decided to change the existing standards. The amendments are also aimed at preventing the consequences of fires in the form of loss of life and destruction of property.

The innovations affected facilities where citizens can be present at night. They must have staff on duty 24 hours a day. Cinemas will inform viewers about what to do in the event of a fire. The changes also affected retail facilities and medical organizations.

Where exactly is smoking prohibited in the apartment building?

The area of ​​the house can be huge, so it is necessary to specify in which rooms smoking is prohibited by law.

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According to clause 10, part 1, art. 12 Federal Law No. 15 of February 23, 2013, it is prohibited to smoke in elevators and common areas of the apartment building.

The Housing Code of the Russian Federation specifies what exactly should be understood as common areas:

1. Inter-apartment landings.
2. Stairs.
3. Elevators and their shafts.
4. Corridors.
5. Attics.
6. Roofs.
7. Cellars.
8. Technical floors, warehouses.
9. Wheelchairs.

The adjacent area and buildings located on it cannot also be used for smoking. Therefore, if someone smokes in a garage or in a parking lot, which is located on the land plot of an apartment building, this is a reason to contact the competent authorities.

How to protect yourself from exposure to tobacco smoke

If you are not eager to get involved in disputes and law enforcement jungle, consider protecting your apartment from pungent odors and harmful oxides. Supply ventilation is a good solution .

Such a system contains filters that will reliably keep harmful substances inside, preventing them from spreading throughout the apartment. As a bonus, forced ventilation will remove mold spores, dust and odors from the air, and freshen the air.

By the way , supply ventilation is also suitable for smokers. It will clear the smoky air in the apartment of the owner of a bad habit.

Is it possible to smoke on the balcony?

It depends on what kind of balcony we are talking about. If you mean a balcony on the floor, then you can’t. If in an apartment, it’s possible.

There are often cases when management companies have to sort out disputes regarding smoke on common balconies. Some people think that by hanging a “Smoking Area” sign on it, they are not breaking the law and smoking in a specially designated area.

In fact, clause 2 of the RF PP No. 491 dated 08/13/06 classifies the balcony on the floor as a common area. To use it for smoking purposes, it must be equipped. But even before that, you will need to literally ask permission from the other neighbors in the house. This can be done through a neighborhood meeting. The consent of other residents must be formalized in the form of a decision of the OSS or HOA, residential complex, housing cooperative, management company.

Negative effects of passive smoking on the body

When smoking, 20% of toxic substances enter the smoker's lungs, and 80% remain in tobacco smoke. Why is passive smoking (inhaling other people's smoke) harmful?

• headache and irritability occur;
• possible redness and pain in the eyes;
• sleep deteriorates, insomnia occurs;
• the risk of asthma, bronchitis, tuberculosis increases;
• the load on the heart and blood vessels increases, which can cause atherosclerosis;
• the risk of developing cancer increases.

At night

Take steps to protect yourself from tobacco smoke. If you cannot influence your neighbor, limit the access of smoke to the balcony and into the apartment as much as possible.

Is it possible to smoke out the window of your apartment?

The law does not give a clear answer to this question. In practice, this is acceptable until the first conflict with neighbors. If they can prove that smoke from your window enters their apartments, residents have the right to complain to the district police officer. In this case, the truth will be on their side, and the smoker will have to pay a fine.

At the same time, you can “ask” for permission to smoke in this way at a general meeting of residents. If everyone votes unanimously “for”, and this is reflected in the protocol, for the smoker this is a significant plus in his favor.

What if it bothers the neighbors?

Federal Law No. 15, or more precisely, Article 9, paragraph 2, subparagraph 3, states that the actions of any citizen of the Russian Federation should not violate the rights of other people, disrupt their favorable living environment, create a health risk, etc.

Based on this subclause, your neighbors can legally prohibit you from smoking on the balcony. However, this procedure is very labor-intensive. Referring to Art. 1064 and 1065 (clause 1) of the Civil Code of the Russian Federation, it is necessary to prove that cigarette smoke coming from the neighbor’s balcony:

• leads to a discrepancy between the air in the apartment and all current sanitary standards;
• provokes attacks of asthma, allergies or other diseases in minor family members.

If the statement is not confirmed by the results of expensive examinations, any competent lawyer can challenge such a claim, calling into question the fact that the listed problems are caused by neighbors smoking.

How can you avoid a conflict situation? Is it possible to smoke if it bothers the neighbors? The answers to these questions are clear - you can use electronic cigarettes filled with nicotine-free liquid with a mild, almost imperceptible odor.

Arrangement of smoking rooms in an apartment building

Since smoking in an apartment is not an option, smokers have the right to set up a special place within a residential building.

It can be located:

• in open areas;
• in an isolated space belonging to the property of an apartment building.

If the area is allocated to the fresh air, then the smoking room should be located away from children's and sports grounds. If it is installed inside the house, it must be equipped with a ventilation system in order to properly remove smoke and purify the air.

In addition, regardless of the location of the smoking room in an apartment building, it must contain materials about the dangers of smoking.

From conflict to trial

Once again, taking a drag from his cigarette, Mikhail remembered: today he is unlikely to be able to smoke again. The neighbors with whom he shared a balcony had already returned from their dacha and would certainly express their indignation at the smoke. I didn’t want to enter into controversy or even just react in any way at all. However, Mikhail thought: the balcony is an integral part of his apartment, and, therefore, is also his private property. And there he can do whatever he wants. But just five years ago you didn’t have to worry too much and smoked literally wherever you had to.

However, with the entry into force on June 1, 2013 of the new federal law “on the infringement of the rights of smokers,” as Mikhail calls this normative act, his life has become sharply more complicated: now smoking has become possible only in specially designated places or at least in places that are not prohibited . And after the cigarette butt he threw out ended up on the lower balcony, and there was almost a fire there because of some bale of things, the smoker had no life at all.

After this, the young man began to go out with a cigarette onto the common balcony, through which the fire escape passed - this is where, he hoped, no one would find fault. But having met a cleaning lady on it a couple of times, who smelled smoke and frowned in displeasure, it became clear that you wouldn’t be able to smoke peacefully here either. And indeed, literally a day later, a menacing sign with a crossed out cigarette and the inscription “For smoking - a fine” appeared on the balcony. There is only one outlet left for this favorite habit - your own balcony. But this is where problems began.

But just five years ago you didn’t have to worry too much and smoked literally wherever you had to

After another visit from neighbors, whose recently born child often slept in a stroller on their loggia, Mikhail became indignant: the balcony is his, and he has every right to smoke on it. And smoke is a minor matter, the laws of physics, chemistry and weather conditions have not been canceled, and accordingly, the inconvenience of neighbors is not Mikhail’s problem. And indeed, for two weeks after the “explanatory conversation” no one bothered him.

However, the young man’s surprise when he received a subpoena was extremely great. It turned out that the neighbors contacted the police, and an administrative case was opened against the young man. And by a court decision, he may well be banned from smoking on his own balcony. Moreover, they can be forced to pay a fine and even compensate for moral damages to neighbors - in particular, a child who, according to neighbors, “had to swallow all this smoke.”

Bodies where you can complain about smoking in the MKD

The first step is to contact the local police officer. This is the most expeditious way to protect violated rights. If the local police officer is inactive or his actions did not bring the desired result, contact the police department directly to the authorities.

The supervisory, or as they are also called - controlling, bodies in this case are the GZHI and Rospotrebnadzor.

A complaint to the prosecutor's office is also usually effective. However, here everything still depends on the workload of the employees of a particular prosecutor’s office - if they are loaded with criminal cases, it is unlikely that they will have time to urgently solve problems with smoking in prohibited places.

The last authority to turn to if “nothing helps” is the court. In order for your complaint to be considered, you will need to file a claim and pay a state fee.

How to deal with smokers?

The very first step that non-smoking neighbors should take is to talk to the troublemaker.

If such measures do not help, you can contact representatives of Rospotrebnadzor, housing and communal services. Carrying out inspections and repeated reprimands is the only thing that threatens your neighbors. However, such measures can also bring a positive result - force the person who disturbs your peace to quit smoking or switch to electronic cigarettes, which are not capable of “smoke” other apartments.

Sample application for a smoking neighbor

If conversations do not help, and the management company is powerless to influence the smoking neighbor, the only way out is to file a complaint (application) with the district police officer. It can be written on behalf of one person or take the form of a collective appeal.

Precinct police station No. 1 in Obninsk

From citizens living at:

Obninsk, st. Tsvetochnaya, 72, building 2, apt. No. 7, 8, 10, 11, 12

Kirillova A.G., Efimchenko T.V., Yaslovoy T.E.,

Krivonos G.E., Tigipko R.R.

Statement

We ask you to urgently respond to the actions of the Lvov family, living at the address: Obninsk, st. Tsvetochnaya, 72, building 2, apt. No. 9. These citizens regularly smoke on the open loggia of their own homes, which is why our apartments receive an unpleasant odor from the burning of tar and tobacco. By doing so, these individuals violate public order and harm our health. We have been forced to suffer from an unpleasant odor for more than 8 months (from the moment they moved in).

Residents of the house made attempts to talk to the Lvov family. In response, they used obscene language and threatened the activists. These actions were captured on video, which we attach as evidence. Warnings were repeatedly posted at the entrance, but these persons tore down and destroyed these notices.

May 24, 2021 (signatures and full names of all applicants)

How to help yourself

If the neighbor does not give in to suggestions and continues to smoke on the loggia, and attempts to resolve the issue legally have not borne fruit, then it is time to act independently. Indoor ventilation will help protect your apartment from harmful odors and corrosive smoke.

The ventilation system includes cleaning filters. They are able to block the spread of harmful substances and help rid the apartment of dust, mold, and foreign odors. Eliminates the feeling of stuffiness, gives freshness and a pleasant aroma to the room if you use fragrances.

Of course, the most basic option is to close the window if you smell smoke. But often your neighbor continues to smoke not only when you are at home. And leaving the room without ventilation while walking and working is not rational.

Type and amount of punishment for smoking in MKD

Citizens who smoke cigarettes in apartment buildings face a fine in the amount of:

• from 500 to 1500 rubles – on the territory of an apartment building where children do not roam;
• from 2000 to 3000 rubles - on playgrounds near the house.

The specific amount is determined by the person authorized to bring to administrative responsibility. If the violator does not agree with his decision, he can go to court.

However, that's not all...

A smoker can be brought to civil liability, within the framework of which he will have to compensate for harm to the health of others and moral damage.

Moreover, when they talk about the possibility of recovering moral damages, these are not empty words. In domestic judicial practice, there is already a decision of the Supreme Court of the Russian Federation, which ordered a resident of Novosibirsk in October 2021 to pay 5 thousand rubles of moral compensation to the plaintiff, who suffered from unpleasant odors entering his apartment.

It is also worth keeping in mind that there are asthmatics who cannot tolerate the smell and smoke of cigarettes. If the harm was caused to a person with health problems, the compensation can be quite impressive.

Foreign experience

Ukraine

On December 16, 2012, a Law came into force on the territory of Ukraine, which reflects the list of places that are subject to a smoking ban. It includes entrances and common balconies of multi-storey buildings. According to Article 175-1 of the Code of Administrative Offences, the violator of the law first receives an oral warning, and then undertakes to pay a fine in the amount of 3-10 tax-free minimum incomes. In case of repeated violation of the law, the penalty will increase to 20 NMD.

Belarus

According to the current legislation of the Republic of Belarus, there is no direct ban on the use of tobacco products on private balconies of apartment buildings. However, if a neighbor regularly annoys other residents with the smell of tobacco smoke, he can be brought to justice.

In accordance with the article of the Housing Code, citizens of the Republic may demand the elimination of circumstances that pose a threat to their health. Relevant applications can be sent to the housing department. The size of sanctions for administrative offenses is 1-3 million rubles, that is, 10-30 basic units.

Kazakhstan

In accordance with Article 159 of the Code dealing with health issues, the smoking ban applies to the entrances of houses and other public places. During 2015, 108,995 smokers were fined in Kazakhstan for violating this law. The total amount of fines amounted to 525,000,000 tenge. During the first 2 months of 2021, 23,321 people were fined.

Is it always the smoker's fault for breaking the law?

Smoking people who live in apartment buildings find themselves in a hopeless situation. Some of them would be happy not to break the law, but there are simply no designated smoking areas in or near the house. Therefore, the question arises: who is obliged to allocate such places and who can be held accountable for their absence.

The responsibility for ensuring sanitary and epidemiological measures, monitoring the technical condition and fire safety of an apartment building lies with the management company (HOA, residential complex, housing cooperative). It is these organizations that should equip smoking rooms. If the latter are absent, and smokers “smoke” in the entrances, then the management organization will also have to pay a considerable fine:

• for a legal entity - from 50 to 80 thousand rubles;
• for an official - from 20 to 30 thousand rubles.

In practice, usually no one complains about management organizations for the lack of smoking areas. For this they are “punished” with fines during inspections by Rospotrebnadzor and fire inspection authorities.

Nuances

There is a ban on smoking on hotel balconies, as they are considered a public place. In many of them, in order to attract guests, a special dedicated space is provided for smokers. The smoking room must be equipped with ventilation and have fire-fighting equipment.

On the territory of a private house, you are the rightful owner, so you can smoke on your own balcony if there are no other owners and there is no shared division of the plot. Otherwise, you need to negotiate with all property owners about a special place for smoking.

Is smoking allowed in your own apartment in an apartment building?

Yes, it's allowed. Including on your own balcony, in the toilet and in the kitchen. The territory in an apartment building, which belongs by right of ownership, is the personal space of its owner. This is not a shared use area, so smoking in the apartment is not prohibited by law.

However, if someone files a lawsuit with a complaint that a cloud of smoke, a tobacco smell, or even ashes and cigarette butts enters his apartment from your balcony or apartment, he will most likely be satisfied.

The consequences for the smoker in this case will be as follows:

• ban on smoking in the “disputed” territory;
• fine;
• compensation for moral damage.

Despite the fact that there is no law banning smoking in one’s own apartment, the Constitution of the Russian Federation in Article 42 states that everyone has the right to a favorable environment and clean air. In this case, this norm plays a decisive role for the judge when making a decision.

How can you stop your neighbor from smoking?

The smell of cigarette smoke is extremely unpleasant for a non-smoker . If a neighbor smokes on the balcony of a residential building and this causes you inconvenience, there are several options for solving the problem.

Peaceful settlement

First of all, you need to talk to your smoking neighbor. You should not start the conversation with a stormy showdown or demands to quit a bad habit. It is quite possible that he does not even suspect that smoke is entering your apartment.

Explain in a polite manner why this makes you uncomfortable. As arguments, one can cite excerpts from the Constitution and the Civil Code, and regulations. Also refer to the presence of chronic diseases, if any and documented.

You can suggest creating a ventilation system or agreeing on a time when your neighbor can smoke without disturbing anyone. Finding a compromise is the best way to resolve the situation .

Appeal to authorities

If attempts to peacefully resolve the issue have led nowhere, and the offender continues to pollute the air with tobacco smoke, there are several authorities that will help resolve the conflict. The consequence of a recorded offense will be a fine of up to 1,500 rubles and compensation for losses of the victim, if any.

Important ! If there is a minor child in the plaintiff’s house, then the amount of the fine for smoking on the balcony of a residential building increases to 3,000 rubles (20.4 of the Code of Administrative Offenses of the Russian Federation, Part 1).

How to record a violation?

To bring a violator to administrative responsibility, it is necessary to record the fact of an administrative violation. The evidence base will be :

• testimony from neighbors;
• photo and video recording of the violation, which should clearly show the smoker’s face and the location of what is happening.

Where to contact?

Non-smoking citizens can file a complaint with employees of the following organizations:

1. Management company, HOA . It will help if the ventilation systems of the house are in poor condition.
2. District police commissioner . It is required to indicate that there is a violation of Law No. 15-FZ and to present recorded damage caused to health or property. You can invite a policeman to the apartment at the moment when a neighbor indulges in a bad habit. The police officer will draw up a report on the offense, after which the appropriate punishment will follow.
3. Court . It is necessary to file a claim, collect evidence of violation of the law and demand punishment for the culprit, as well as compensation for the harm caused.
4. Rospotrebnadzor, State Housing Inspectorate . They should be contacted last if complaints to the above authorities have not yielded results.

Smoking in rented housing in apartment buildings

The fact that the owner can do whatever he wants in his apartment (as long as it does not infringe on the rights of other residents) is understandable. Another question is whether it is possible to smoke in a rented apartment.

Since these legal relations are governed by civil law, the parties, at their own discretion, stipulate this point in the contract. If you write down a clause banning cigarettes, you immediately need to stipulate the consequences of violating it. This could be a fine in the amount of compensation for damage caused or even early eviction.

Special cases

To provide arguments in disputes, if a neighbor continues to smoke on the balcony despite all conversations and prohibitions, real court proceedings can be used as an argument.

As a rule, they end badly for smokers. For example, in 2021, neighbors from the city of Novosibirsk opened a legal battle. The harmful smoker continued to smoke on the loggia, despite requests, persuasion and the presence of a small child in the room, through the window of which caustic fumes entered. The injured party had to prove his case in court for three years, and even move from his place of residence.

Only the Supreme Court confirmed the violation of the law on the part of the defendant. The plaintiff did not provide documents confirming real damage to health, so the smoker was punished only with a fine of 5,000 rubles. There was no ban on smoking on the balcony.

In Krasnoyarsk a year ago, the trial ended with more serious consequences for the defendant. The woman tried to resolve the matter peacefully, but the neighbor turned out to be impenetrable and she had to go to court. The lady confirmed her illness with certificates and provided medical reports on her state of health, which worsened due to the fault of the defendant.

Complaints were limited to high blood pressure, headaches and difficulty breathing. It took some time, several trials. The smoker was fined 5,000 rubles and banned from smoking on the loggia of the apartment building.

Is it possible to smoke electronic cigarettes?

At the moment, there are no specific references to electronic analogues of tobacco products in the current legislation. This fact is actively used by distributors and consumers of these products.

Particularly active smokers manage to smoke electronic cigarettes even in hotels, trains and airplanes. As for your own apartment, in this area you can use these devices without any problems, provided you avoid tobacco-flavored liquids.

The advantages of electronic cigarettes include:

• High protection against the risk of fire occurrence and spread;
• Ease of use;
• a variety of aromas of liquids used to fill devices;
• the possibility of getting a “throat hit”, just like when smoking regular cigarettes.

As for health safety, according to experts, electronic devices cannot be called completely harmless. However, many consider their effect on the body to be much milder (compared to tobacco products).

In Art. 16 Federal Law No. 15 mentions a ban on the use of devices whose design imitates real tobacco products. According to this paragraph, you can use electronic cigarettes in public places, unless the devices you choose do not look like cigarettes.