Can I legally stop a neighbor from smoking weed if smoke drifts to my California property?
Not everyone partakes in the legal use of marijuana in California, so when the pungent aroma of a neighbor’s joint crosses fence lines, a cloud of controversy hovers in the air.
A reader asked The Sacramento Bee’s service journalism team, which focuses on helping the community navigate daily life: Can my neighbor smoke weed in their backyard when the smoke carries on to my property? What rights do I have?
You and your neighbor both have rights in this situation. Here’s what the law says about smoking on private property and what action you can take if smoke becomes a nuisance:
Can you smoke weed in your own backyard in California?
You can smoke weed on private property including your own backyard, according to the California Department of Cannabis Control website.
You cannot smoke weed:
Where it’s illegal to smoke tobacco
Within 1,000 feet of a school or children’s center when children are present
If you are renting, private property owners can ban the use of weed or any other cannabis product.
For vacation rentals, renters should check with the owner about the rules for the property, according to the department’s website.
What can you do if your neighbor’s weed smoke bothers you?
David Rosenthal, the founding attorney of Sacramento-based law firm Rosenthal Law, said you do have rights if your neighbor’s weed smoke bothers you.
“The easiest remedy would be to talk to the neighbor and ask them to smoke in such a way that it does not drift over to (your) property,” Rosenthal said in an email sent to The Bee.
If the neighbor refuses to cooperate, Rosenthal said the neighbor smoking weed could be considered a “nuisance.”
“A nuisance is a private civil cause of action generally defined as an activity by one person that unreasonably interferes with the use and enjoyment of another person’s property,” Rosenthal said. “If you prove that someone committed a nuisance, you may be entitled to damages or an injunction.”
California Civil Code 3479 states anything that is an obstruction to the free use of property and interferes with someone’s life or property is a nuisance.
“Since smoking marijuana on your own property is now legal, this cannot be resolved by calling the police as a criminal matter,” Rosenthal said.
If your neighbor refuses to cooperate with your request, Rosenthal said it can become complicated and costly hiring a lawyer to file a lawsuit.
“While Small Claims Court is a possibility, that seems complicated too,” Rosenthal wrote. “I’m not sure the court would have the ability to hear a case where the plaintiff requests only that the defendant stop smoking marijuana in a way that affects (their) property.”
However, Rosenthal said if there is a claim for money damages surrounding the nuisance, then the court could order that the neighbor stop smoking in that way.
If the neighbor is smoking weed on private property that is neither theirs or the concerned neighbor’s, Rosenthal said the responsibility to take action would fall on the landlord.
“(It) would depend on how strict the landlord is in enforcement of their own rules,” Rosenthal said.
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