Smoking in Owners’ Units — Will Others Follow?
Anti-smoking activists and some community association attorneys have been predicting that it was only a matter of time before the courts would allow communities to bar smoking entirely – not just in common areas, but inside individual homes.  A Colorado District Court recently did just that.

The court upheld a declaration amendment enacted by the Heritage Hills Condominium Owners Association prohibiting smoking anywhere within the boundaries of the four-unit community.  Owners of two of the units and their tenants had been complaining almost since the condominium was created in 2000 that smoke seeped into their units from a unit occupied by Coleen Christiansen and Roger Sauve, both heavy smokers.

When extensive efforts to prevent the smoke from infiltrating the units — by caulking, installing foam insulation, altering the return air ducts, and other means — proved unsuccessful, three of the four unit owners approved an amendment to the condominium declaration, prohibiting smoking anywhere in the community.  Christiansen and Sauve sued, claiming that the association had acted capriciously, lacked the authority to prohibit legal activities within residential units, and had not proven that second-hand smoke (rather than simply the smell of smoke) was actually seeping into the other units.  The plaintiffs also argued that the smoking ban violated their right to smoke within the confines of the home they owned.  District Court Judge Lily Oeffler rejected all of their arguments, ruling that:

    • The efforts by other owners to mitigate the smoke before enacting the by-law demonstrated that the association had not acted “capriciously.”
    • The association properly based its authority to ban smoking on the anti-nuisance provision in the condominium declaration, which allows the association to prohibit “any practice which interferes with the peaceful possession and proper use of the property by its residents.”
    • Second-hand smoke qualifies as a nuisance, and “the issue of whether there was actual smoke or simply a smoke smell is irrelevant….”

As for the plaintiffs’ right to smoke in their own home, Judge Oeffler noted, the courts have not identified smoking as a right protected by the Constitution. On the other hand, Colorado, like many other states, has adopted laws designed to protect citizens from the adverse health effects of second-hand smoke in indoor areas.  The association’s authority to restrict activities inside residential units is further strengthened in this case, Judge Oeffler said, “where plaintiffs’ private activities are impacting so negatively on the remainder of the community that they chose to join.”

Significant but Limited
The decision is significant, because there haven’t been many decisions (and none, as yet, at the appellate level) dealing specifically with the authority of a homeowner association to restrict smoking within the confines of individual units. And given the steady growth in the number of people living in common interest ownership communities and the increased willingness of non-smokers to assert their right not to breathe second-hand smoke, community associations will almost certainly see more smoker vs. non-smoker disputes among owners in the future.  But while this decision is notable, its significance is limited for two reasons:

    • It is not an appellate decision, and so does not establish a precedent that lower level courts in this jurisdiction or any others are bound to follow.
    • The decision was fact-specific, and several factors make this case unique, among them:  The condominium involved was very small (only four units); the building was older and porous, making the seepage of smoke into adjoining units difficult to control; the units shared a common soffit that housed the HVAC units for all four units; residents had been complaining about the second-hand smoke seepage for several years and the association had undertaken extensive, and unsuccessful, efforts to address the problem before enacting the smoking ban.

Judge Oeffler cited that long history and the unsuccessful mitigation efforts as the basis for her conclusion that the association’s decision to ban smoking was not arbitrary and capricious, as the plaintiffs contended.    While the decision does not define the steps associations must take before enacting a smoking ban, it does suggest that documented remediation efforts may strengthen an association’s defense against claims that they acted arbitrarily and capriciously in banning smoking in their communities.

The decision may also suggest the logic that other courts might follow in upholding association smoking bans against the claims of owners who argue that owners have the right to smoke within the confines of units they own, and that a homeowners’ association has no authority to abridge that right.  If an association can ban smoking as a nuisance that offends other owners, the plaintiffs in this case suggested, it might, by the same logic, prohibit owners from cooking foods that produce odors other owners find offensive.

Balancing Rights and Risks
But Judge Oeffler noted that while there is no constitutional right to smoke, there is plenty of medical evidence that second-hand smoke poses a health risk for non-smokers, underscored by the adoption of laws in many states (Colorado among them) banning smoking in public places.  The balance between the rights of smokers to indulge within the confines of their homes, and the rights of non-smokers not to be harmed by second-hand smoke, tips understandably toward the rights of non-smokers.  But because cooking odors don’t create comparable health risks, the courts could reasonably give more weight to the rights of owners to cook foods of their choice than to the rights of owners who don’t like the smell of what their neighbors are cooking.

The Heritage Hills litigation was initiated by owners challenging a ban the association had imposed; associations that decline to ban or restrict smoking may also face suits by owners who allege that they have been harmed by second-hand smoke, and who claim that the associations has some liability for the damages they have suffered.  This remains unplowed legal ground.

It is not clear how much, if any, liability courts in this jurisdiction or others will impose on a community association, nor can we predict what steps, if any, courts may require associations to take to provide the “reasonable accommodations” federal (and state) Fair Housing laws require for owners with disabilities, such as asthma, for whom second hand smoke poses severe health risks.  But the likelihood that smoker vs. non-smoker disputes will intensify and produce litigation involving homeowner associations, underscores the need for boards to address the issue proactively.

Finding Reasonable Remedies
As a first step, boards should take complaints about second-hand smoke seriously and try to mediate a remedy, or remedies acceptable to all parties.  These remedies may include simple suggestions (that smokers leave their windows open), as well as more extensive and more extensive measures, such as caulking openings, re-routing ductwork, and installing air purification systems, the cost of which might be shared by the smokers, the offended non-smokers, and perhaps by the association, as well.  It is in the association’s interests to try to create remedies, rather than risk having those remedies imposed by a court.

Associations that decide to ban smoking should do so by amending their declaration rather than by drafting a rule prohibiting smoking in residences and common areas.  A declaration amendment is more difficult to enact (it typically requires the approval of at least 50 percent of unit owners and sometimes more, while a board can adopt a rule by majority vote of the board), but a declaration provision is also easier to defend.  Owners challenging an amendment to the declaration must prove that it is arbitrary and capricious; owners challenging a rule must demonstrate only that it is “unreasonable” — a much lower legal threshold to clear.

Residents of common interest ownership communities have the opportunity and the right to determine how they want to live in those communities.  There are limits to what owners and their elected boards can do, of course.  While the Heritage Hills decision was a victory for non-smokers in that community, it does not suggest that all associations that want to ban smoking in their communities will necessarily be able to do so. But it does suggest that creating a smoke-free environment may be an option available to many of them.

Let Owners Decide
Before proposing a smoking ban, boards should take the pulse of their community to gauge the level of support for opposition to the plan. The more smokers residing in the community, the less likely a ban will be approved.  But boards may be able to craft creative solutions to these potential stalemates, for example, by exempting existing smoking owners and establishing designated areas where they can smoke without bothering non-smokers.

Disputes between smokers and non-smokers produce intense emotions on both sides, along with the potential for considerable and lasting ill will.  While it may well be that other courts will follow the Colorado court in elevating the rights of non-smokers over those of smokers, boards must find ways to respect the feelings of smokers, even as they recognize the rights and health concerns on non-smokers.  This balancing act won’t be easy, but in the interest of resolving potentially divisive conflicts and preserving a sense of community among residents, it will be essential.

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