Although smoking is generally on a decline, the problems associated with smoking in condominium communities (and sometimes in attached townhome communities) continues to rear its ugly head with the “right to smoke v. the right to breath clean air” debate getting uglier and uglier.
We recently blogged on a case out of Orange County, California in which a five-week trial focusing on this very issue recently concluded with the jury finding a condominium association was “negligent” for failing to resolve a secondhand smoke dispute between neighbors and failing to ensure the non-smoking family’s right to quiet enjoyment in its home. Additionally, the jury awarded the non-smoking family an award of $15,500, representing $6,000 in damages and $9,500 in emotional distress.
In the author’s opinion the most crucial point of this case is the finding that although the association’s rules and covenants did NOT prohibit smoking, the declaration contained a nuisance prohibition that prohibited anything to be done on the property that would interfere with the quiet enjoyment of the owners’ respective residences. The jury found the smoke infiltration to be a interference with quiet enjoyment and a breach of the covenants. The jury further found the association’s failure to ensure the non-smoking family could enjoy their home without infiltration of smoke constituted a breach of contract by the association.
Should this finding be followed by other courts, associations are at risk of court findings and interpretations of “quiet enjoyment” that are even broader than the one above. For example, using the above analysis may courts start finding that associations failing to break up fights between feuding neighbors have violated the owners’ rights to quiet enjoyment? What about situations with barking dogs or loud neighbors? Is the safest option in this case to not have a “quiet enjoyment” requirement in the declaration or rules of communities? Please share your thoughts.
For more information on smoking and associations, see our article SMOKING BANS IN ASSOCIATIONS: HEALTH & ECONOMIC CONCERNS.