As owners in common interest communities continue to ask the state courts to require homeowners association’s to prevent second hand smoke from entering a unit, the courts are continuing to rule that an Association has no right or obligation to prevent the migration of second hand smoke into an indivdual unit.  Most recently,  a court in Maryland ruled on a case of a homeowner suing the Association regarding second hand smoke moving from one unit to another.  The homeowner filed the lawsuit stating that the association should have done something to stop the secondhand smoke that was infiltrating his unit.  After six days of testimony, the court ruled that while second hand smoke may not be good, the homeowner did not establish that his injuries were sufficient so that the court would rule in his favor.  The Court stated that the resolution to this issue is something that must come from the legislature not the court.  It is unclear what the level of injuries were from the homeowner objecting to the secondhand smoke and if more concrete injuries would have resulted in a different verdict. In Colorado,  a Jefferson County court ruled that prohibiting smoking in a Unit could be accomplished by way of an amendment to the Declaration.  If an Association is consistently facing this problem, the only clear resolution is through this amendment process.

David A. Firmin
One response to “Second Hand Smoke – What’s a Court To Do?
  1. I think the courts are getting it right. This should be treated as a form of trespass, a civil matter between 2 owners. As long as the activity is legal and does not violate any covenant, I don’t think the association should even get involved, except maybe to seal up penetrations in the common area floors or walls through which any odor or smoke might move. I’m not sure it would be cost-effective to amend the Declaration for the benefit of a couple of owners, unless they wanted to pay for it. And even then, the association would have to grandfather anyone who already lives in the community and who smokes. And thereafter, how would the association ever be able to know who smokes, and when he moved in? It would become an enforcement nightmare. Now, what about those folks who have to smoke medical marijuana? . . .
Comments are closed.
Social Media Auto Publish Powered By :