Under Maryland law a “nuisance” is an interference with the enjoyment of one’s property when that interference is substantial and unreasonable such that it would be offensive or inconvenient to the normal person. A “nuisance per se” is an act, occupation, or structure which is a nuisance at all times and under any circumstances regardless of location or surroundings. “Nuisance in fact” is an act, occupation, or structure, not a nuisance per se, but one which becomes a nuisance by reason of the circumstances, location, or surroundings; for example, noise can become a nuisance if it is substantial and unreasonable.
A Maryland Court was called to address the issue of whether cigarette smoking was either a “nuisance per se” or “nuisance in fact.” In the case of Schuman v. Greenbelt Homes, Inc. 212 Md. App. 451 (2013), Plaintiff, an Owner of unit in housing cooperative, brought action against the cooperative housing association for, among other things, nuisance. Plaintiff alleged that a neighbor’s smoking, on his balcony, for up to an hour and a half each evening, caused secondhand cigarette smoke to enter his patio and home and constituted a nuisance. The Court held that tobacco smoke did not constitute a nuisance per se. The Court further held that under the facts of that case, the cigarette smoking did not constitute a nuisance in fact because the Plaintiff could prevent any offensive odor from secondhand smoke from entering his home by closing window and turning on a fan. The only inconveniences to the Plaintiff were that he could not sit on his porch for up to an hour and a half each evening and had to shut his windows at that time. The Court further found that the limited smoking would not cause physical discomfort and annoyance to persons of ordinary sensibilities, nor would it seriously interfere with the comfort and enjoyment of the average person’s home.
While the Schuman Court did not find the existence of a nuisance under that set of facts, a nuisance in fact is determined on a case by case basis and dependant upon each distinct set of circumstances.