After a five-week trial, a California jury found the Bella Palermo Homeowners Association negligent for failing to resolve a second-hand smoke dispute between neighbors at a Trabuco Canyon condominium project.  The plaintiffs were awarded just over $15,000 for their claim that the association and management company failed to ensure the non-smoking family’s right to the quiet enjoyment of their unit.

The Orange County Register reports that the dispute arose from the plaintiffs’ complaint that their neighbors smoked “incessantly” on their patio, leading to the “constant infiltration and presence of secondhand smoke” entering the condo through the windows and sliding-glass door. While the declaration did not contain a restriction against smoking, the jury found that the association’s rule prohibiting “nuisances” was enough to find the HOA and management company in breach of contract and negligence.

While most declarations contain some provision against nuisances, not many contain absolute bans against smoking. However, we are getting more and more requests for drafting amendments that ban smoking altogether. And, at least in one case, this type of amendment was upheld by a Colorado District Court.

In addition, Colorado associations are already subject to the Colorado Clean Indoor Act.  This Act prohibits smoking in:

  • Common areas of condominiums and other multiple-unit residential buildings like townhomes. The Act specifies restrooms, lobbies, and hallways, but “common areas” would also include clubhouses, mailrooms, or pool locker rooms.
  • The “entryways” of the common elements of condos or multiple-unit residential buildings.  Entryway is defined as the “outside of the front or main doorway leading” into the restroom, lobby, hallway etc.  An entryway includes “a specified radius outside the doorway.” The Act states that the “specified radius” is to be determined by the local authority (such as city governments, but most likely not an HOA board of directors), but if the local authority has declined to specify the radius, the Act provides a specified radius of fifteen feet.

Boards are finding themselves in a balancing act, where they must respect the feelings of smokers while recognizing the rights and health concerns of non-smokers. How the association deals with this balancing act is essential to minimizing conflict and preserving a sense of community among the residents.  And, while there may be legislation that addresses smoking in common areas, the true problem lies in how to address smoking that occurs within the unit boundaries.

Do you think second-hand smoke rises to the level of a nuisance? What exactly is an association’s responsibility for resolving second-hand smoke disputes?

Melissa M. Garcia
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