Panties are offensive, grills are suffocating, cigarettes are poisonous. What is allowed on the balcony?

One of the residents is smoking on the balcony, the smoke is coming into the flats through the windows. The neighbours are telling him off, someone says that he has children at home, including a newborn, but the smoker replies that he is at home. If it bothers someone, they can close the window.

This is a recent situation from one of Warsaw's gated communities, but it could have happened anywhere. Balcony smokers disturb their non-smoking neighbors even more as the temperature rises. It's hard to stand 30 degrees with a closed window.

The issue is so troublesome that the Ministry of Health regularly receives petitions to ban smoking on balconies or in the windows of multi-family houses. The author of the document addressed to Minister Izabela Leszczyna in May wrote: “Non-smokers are exposed to inhalation of tobacco smoke from people smoking on balconies.” He pointed out that for some – e.g. the elderly or those who do not leave their homes – going out on the balcony is the only chance for contact with fresh air.

Although the author admits that the balcony is private property, he points out that cigarette smoke spreads sideways, upwards, and even enters the apartments. “Cooperatives and communities do not want to introduce such prohibitions into their regulations,” he claims. “They argue that this is due to the lack of legal support from the state.”

The Ministry responds similarly to this and previous petitions: a balcony is not a public space. Does this mean that people who are bothered by the smoke from their balcony have to learn to live with it? Not necessarily.

– The “tobacco” act, i.e. the act of 9 November 1995 on the protection of health against the effects of using tobacco and tobacco products, contains a catalogue of places where smoking is prohibited. This catalogue does not include balconies of residential premises, so the ban currently resulting from this act cannot be extended to them – says Patrycja Pieszczek-Bober, a specialist in medical law. On Instagram, she runs an educational account called Prawo do Zdrowia.

However, the lawyer emphasizes that there is no legal justification for treating the interests of smokers higher than the interests of non-smokers. – Tobacco smoke harms not only active but also passive smokers. The state should take action in this area, aimed at implementing the constitutional right to health protection. In this situation, limiting the possibility of smoking on the balcony would be dictated, among other things, by the right of non-smokers to protect their health from the effects of tobacco smoke – she believes.

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This argument has also been repeatedly referred to by people appealing to the ministry. For example, in a petition submitted at the end of September last year through the mayor of Warsaw, we read: “The effects of daily exposure to sidestream smoke should be considered. The concentrations of some compounds in the sidestream are many times higher than their levels in the main stream,” wrote the author. He added that cigarette smoke contains about 400 toxic substances, some of which may have an effect on the development of various diseases, including cancer. “Passive smoking can cause the same diseases that occur in active smokers.”

“Non-smoking residents of apartment blocks and tenement houses are poisoned all year round by smoking people from their neighborhood,” the author of the petition states.

In response to the petition, the Department of Public Health at Ministry of Health “kindly informs that this opinion is not binding and only constitutes a position on the matter”. Non-smokers can therefore hope that the regulations can be interpreted differently.

– Court rulings confirm that exposing a non-smoker to tobacco smoke is a violation of personal rights – states Pieszczek-Bober. – In my opinion, it cannot be stated that introducing a ban on smoking on balconies based on generally applicable regulations is impossible. According to the Civil Code, the owner may use their apartment within the limits set by laws and principles of social coexistence. It is precisely by law that a restriction on the use of a balcony may be imposed, in the form of a ban on smoking cigarettes on it – comments the lawyer.

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– In addition, the owner of the apartment is obliged to refrain from activities that would disrupt the use of neighboring properties beyond the average measure resulting from the socio-economic purpose of the property and local relations – she adds. Can letting smoke into the apartment of a non-smoker be considered exceeding this “average measure”? According to Pieszczek-Bober, yes. – Already in the current legal state, it can be the basis for filing a claim against a smoker to cease such activities – she says.

It is hard to consider the matter closed, because the ministry's subsequent refusal did not close the subject. In June alone, nineteen petitions were submitted on the same issue. Their authors justified their request to introduce a ban on smoking on balconies, among others, with concern for public health and the desire to improve air quality. They pointed out that a similar ban had already been introduced in Lithuaniaand also in Finland and Sweden (in some municipalities).

It's not just cigarette smoke that can be a nuisance. A year ago, a resident of one of Warsaw's districts was outraged by the sight of laundry hanging outside on a warm summer day.

“Upper Mokotów, the main street, an elegant apartment building, and on the balcony… laundry displayed as if in front of a cottage. I can see someone else's panties straight from the kitchen window. Am I nitpicking?” – wrote Mrs. Agnieszka. Her post caused quite a stir and provoked numerous, often humorous polemics. Commentators wondered, for example, whether it is possible to go out on the balcony on a hot day in a swimsuit.

When the local media wrote about the incident, the post disappeared. But the discussion continued. One of the residents proposed to commemorate the local brawl and establish an annual “Festival of Hanging Underpants”. Professional comedians could not miss this opportunity either. In September, the Kadr Cultural Center in Służewiec, Warsaw, staged an improvised play inspired by the events, “Whose Underpants Are Drying Outside the Window?”

But Mrs. Agnieszka is not the only person who is irritated by outdoor laundry. A dozen or so years ago, residents of a certain district in Krakow protested against drying clothes on balconies. In their opinion, this way the area was turning into “slums”. Some communities, taking into account the aesthetics of their residents, introduce a central ban on hanging laundry.

But there are also more serious scandals: sometimes neighbors try to light a barbecue on their balconies. The problem is not only the smoke or the smell of sizzling sausages, which will penetrate the apartments or will be left on the neighbors' laundry. In this way, you can start a fire. – Barbecuing on the balcony is prohibited, because we have fire safety regulations here and we expose ourselves to liability for a misdemeanor. We absolutely cannot do this – said lawyer Przemysław Ligęzowski on the “Dzień Dobry TVN” program.

Among the neighbors' balcony sins, we can also list parties, loud phone conversations, sometimes on intimate topics, excessive watering of plants, which floods the balconies on the lower floors. And probably many more, because everyone can be bothered by something different.

A good summary can be found in the words of one of the discussion participants, commenting on the behaviour of her smoking neighbour who did not listen to complaints: “Some people forget that we live in a community”.