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.    

Elina B. Gilbert
4 responses to “Are Associations Guarantors of Owners’ Quiet Enjoyment??
  1. Yes, they are the governing agency and must make every effort to assure the residents of “quiet enjoyment”. Other governing agencies have police and fire protection, food, air and water safety, etc. The Association makes laws and enforces laws for the specific purpose of protecting property rights and quiet enjoyment. They most definitely are Guarantors.
    Janet Claxton
  2. It seems to me that no smoking bans do not specify just tabacco products, but would apply to smoking marijuana as well.
  3. There are times when one person’s rights collide head-on with another’s. People adamantly insist that their “rights” take precedence over those of others, and, many times, they must turn to the judicial system for a determination. The problem is, though, that the losing party rarely accepts that his “right” has been superseded by another’s, and so, the matter is not really satisfactorily resolved, even though a judge has ruled. Let’s be very clear, however: Just because something is legal does not mean that everyone has a right to it under all circumstances. There is NO “right” to smoke anything, be it tobacco, marijuana or e-cigarettes. And there is NO party which is a guarantor of anything in this life. So, let’s just take those ideas off the table as part of the discussion. Now we must ask “Is there a “right” to breathe air of a guaranteed quality? (To be partially facetious, if so, then everyone’s “right” is violated in every moment.) However, what we are saying is that maybe people have a “right” not to have to smell and be possibly poised by what another person exhales. In many cases, this becomes a control issue. Someone doesn’t like what another person does, and so he is going to force the other person to stop. Sometimes, this is a personal issue between people. One doesn’t like the other, and so he is going to complain about everything the other person does (or says). Let’s take those-two conditions off the table, as well, and just concentrate on the health effects of all types of smoking. If something someone does has adverse effects on the health of another, then, quite possibly, some governing body may have the right and the authority to curtail or eliminate the harmful activity. The question then becomes “Is that governing body the homeowners’ association?” We need to have this discussion, but this should not be based on whether we are smokers or not. As a civil libertarian, I have always advocated for the right of a homeowner to engage in legal activity within the confines of his or her own residence. If ANY odors, smoke or light emanates from that unit and enters into another unit, I have always thought that should be treated as a form of trespass, just like noise. Once something goes through a party wall (which is a common area), it may very-well constitute an association issue to be dealt with. However, trespass upon or into the property of another is also civilly actionable, is it not? If an HOA declines to deal with the issue, the aggrieved resident may always pursue a complaint in a court of law. Most CICs have a rule or covenant that states something similar to this: “No odors are allowed to emanate from any unit if they are unsanitary, offensive or detrimental to the health of the occupants of any other Unit or to passers-by.” Would this not include smoking? Whether or not smoking (of any type) should be allowed in common areas, is an altogether-different matter. Common areas can, and should, be reasonably controlled by the association through the enactment of rules adopted by the executive board. So long as the rule is defensible, it would be enforceable. Most facilities (public or private) prohibit smoking indoors, so an adoption of this policy by CICs would certainly seem reasonable. However, does this reasonableness extend to the out-of-doors? Sometimes, I wonder if we have lost all common sense. I mean, if someone is doing something near you, can you not ask that person to cease or to move away? Or do you not have the ability to remove yourself from the vicinity of that person? Wouldn’t these actions be preferable to taking an issue to the board that will restrict everyone thereafter, as opposed to dealing with the issue appropriately on one’s own? (I’m a big fan of self-help.) This, I think, is akin to running to a legislator every time a person has a problem, and expecting the legislator to take up the cause and solve that problem. (Which, I might add is exactly the source of much dysfunction in our legislative process.) As a manager, these are my perceptions of this issue. You know, everything does not have to become a clash of ideas or perceived “rights.” Our entire country is stymied because of this very notion.
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