Zack’s downstairs neighbor, Ellen, has had another bad day at her stressful job as a mortgage processor. Although Zack hasn’t actually spoken with Ellen since she’s come home from work, he knows that she is not happy. How does he know this? Because Ellen only smokes when very frustrated and his luxury condominium now smells like cigarette smoke as the smoke from Ellen’s cigarette curls into his open windows and pushes through his air vents. Unfortunately, Zack hates the smell of cigarettes and Ellen hates her job. Zack and Ellen have a cordial relationship, but he is unsure as to how he can approach her with his request that she refrain from smoking in her own home because the resulting second-hand smoke is affecting his enjoyment of his home.
Mrs. Bigley, an elderly woman with asthma, has lived in her condominium for years and has proven to be an enthusiastic and valuable association member. Recently, the unit beneath hers was sold to a heavy smoker. Now, Mrs. Bigley has been lodging complaints with the board, begging them to do something to lessen the presence of cigarette smoke invading her unit. She reports that the smoke from the downstairs unit aggravates her asthma and that her doctor has warned her to stay away from second-hand smoke. To make matters worse, the new owner refuses to compromise as he is a superstitious novelist who works from home and views smoking as essential to his creativity.
All over the country, home association board members are wringing their hands trying to determine how to solve the problems posed by situations like Zack’s and Mrs. Bigley’s. Second-hand smoke, also known as environmental tobacco smoke, has been documented as a known human carcinogen by the National Cancer Institute. The Center of Disease Control’s February 2004 Fact Sheet states that ” an estimated 3,000 lung cancer deaths and 35,000 coronary heart disease deaths occur annually among adult nonsmokers in the United States as a result of exposure to second-hand smoke.” Additionally, the Federal Emergency Management Agency lists careless smoking as the leading cause of fire deaths. These facts make it difficult to dispute that those homeowners complaining about second-hand smoke creeping into their condominiums are coping with more than just an irritation. However, shouldn’t a person have the right to enjoy the legal activity of smoking in his or her own home? What’s a board to do? No easy answer exists to this question.
The Colorado legislature and courts have not yet spoken to the issue of second hand smoke in common interest developments. However, most common interest communities have covenants that prohibit its inhabitants from activities that create nuisances that interfere with the other community members’ enjoyment of their property. The board has a fiduciary duty to enforce these covenants. Therefore, it may be possible for the board to order the smoking homeowner to cease by citing to the association’s nuisance restrictions. However, nuisances have historically meant such annoyances as noise violations, and in Colorado it remains to be determined whether second-hand cigarette smoke qualifies as a nuisance. The homeowners association bears the high burden of proving that a homeowner’s activity constitutes a nuisance, which might prove to be difficult in the case of second-hand smoke.
If the association board chooses to categorize second-hand smoke as a nuisance, the association should take the same steps as it would for other types of nuisances such as noise. Case law instructs that the following factors play into whether a given activity qualifies as a nuisance: 1) type of neighborhood; 2) the nature of the wrong complained of; 3) proximity of those alleging injury; 4) frequency/duration; 5) continuity; 6) damage or degree of injury; and 7) number of complaining parties. The board will need to establish a thorough record of the complaints, including dates, times, complaining parties, and witnesses.
For a second-hand smoke complaint, the board should also document the severity of the smoke, how the smoke drifts from one unit to the other, and any particular health concerns that the complaining unit owner may have. If a health concern exists that can be defined as a disability, such as asthma in Mrs. Bigley’s case, there is an argument that if no steps are taken to abate the problem, the association may run afoul of the Federal Fair Housing Amendments Act of 1988, which requires associations to make reasonable accommodations for their disabled members. Additionally, the board should investigate other possible means of ameliorating the problem such as changing air filters, re-chalking windows, and possible compromises between the homeowners (such as restrictions on smoking times and places). After gathering the necessary information, the board will have to determine whether second-hand smoke constitutes a nuisance by balancing the competing rights of the association members to enjoy their homes.
Under Colorado law, the offended homeowner can also try to have second-hand smoke declared a nuisance by a court through a cause of action for a private nuisance. Here, the court or jury applies a different standard than a homeowners association’s board does for covenant violations as the action is based on a statute, ordinance, or common law. Colorado courts have held:
[a] claim for [private] nuisance must be based on a substantial invasion of a plaintiff’s interest in use and enjoyment of his property when such invasion is: (1) intentional and unreasonable; (2) unintentional and otherwise actionable under rules for negligent or reckless conduct; or (3) so abnormal or out of place in its surroundings as to fall within principle of strict liability.
The homeowner would bear the burden of proving that the second-hand smoke constitutes an unreasonable interference with the use and enjoyment of his or her property. Generally, for the court to hold that second-hand smoke is a nuisance it would have to find that a normal person in the community would find the second-hand smoke offensive, annoying, or inconvenient.
However, nuisance claims are difficult to prove, require a significant amount of work, and consume large chunks of the involved parties time. A nuisance claim also lays down the groundwork for continued hostilities in the homeowner community. For these reasons, a nuisance claim should always be an association and a homeowner’s last resort. The board should encourage the smoking and nonsmoking homeowner to discuss the problem and explore possible solutions, such as, depending on the ventilation system, containing the smoking to only certain rooms in the unit. Some other promising abatement actions include having “smoking hours,” providing smokeless ashtrays to residents, and installing door sweeps and weather stripping to seal off opportunities for the smoke to waft into other units. Since many people feel very strongly about the topic of smoking with these strong feelings often causing obstinacy or irrationality, mediation may also be helpful to the situation.
To proactively avoid problems, an association’s documents should specifically address whether or not smoking is permitted in any of the association’s common areas. Additionally, in light of the growing anti-smoking sentiment, an progressive association may want to consider a rule making it a non-smoking community with a “grandfather clause” for those homeowners who already smoke. Although whether or not second-hand smoke will be considered a nuisance in Colorado is still hazy, what is clear is that the issue of drifting smoke will not abate anytime soon. For this reason, homeowners associations should take the time to decide on its smoke policy before the inevitable problem arises.