Is Smoking a Nuisance?
Smoking in residential communities often becomes a contentious issue. As more health issues are linked to exposure to second-hand smoke, more homeowners are looking for ways to ensure they are not exposed to smoke. This can lead to disputes between neighbors and sometimes even results in demands that the Association take action to prevent smoke infiltration. It is important for Associations to understand their rights and responsibilities in these circumstances.
The Risk of Doing Nothing.
Most Associations have provisions in their governing documents that give the Board authority to prevent any “nuisance” or interference with owners’ use and enjoyment of their property. Courts in Washington and Oregon have not definitively ruled on whether second-hand smoke qualifies as a nuisance or an offensive activity under this provision, but that would seem to be a likely result.
A California jury recently considered this issue and ruled against a Condominium Owners Association. In the California case, homeowners complained to their Association that their neighbors’ incessant smoking exacerbated their son’s asthma. The neighbors smoked on their own patio and on common area sidewalks, but the smoke traveled into the complaining owner’s unit. The jury awarded $15,500 in damages and determined that the majority of the damages were the Association’s responsibility. The Association did not have specific rules about second-hand smoke, but did have a rule prohibiting noxious or offensive activities.
Associations should seek to prevent the risk of legal liability by doing something to address second-hand smoke concerns, but what can they do?
What Associations Can Do.
The best course is to address this issue before it ever comes up by amending the Association’s CC&R’s or adopting rules to make it clear to all owners how the problem will be addressed. Using the Association’s authority to prohibit nuisances or offensive activities, the Board may seek to adopt rules prohibiting smoking in common areas which include fine schedules providing prompt recourse against violators.
The issue becomes much more complicated if the Association wishes to prohibit smoking within units. A prohibition against smoking inside units will almost always require a super-majority vote in favor of the prohibition and an amendment of the Association’s governing documents. This will be difficult, if not impossible, to achieve if the Association’s members include smokers. However, although owners may be allowed to smoke in their own homes, Associations can require that the owners take action to ensure that their second-hand smoke is contained within their own homes. For example, Associations can require installation of filters or screens to prevent second-hand smoke from infiltrating neighboring units.
Regardless of the approach your Association decides to take, it is certain that we will continue to encounter second-hand smoke complaints and demands that Associations take action on behalf of their residents. Associations should prepare themselves by considering this issue carefully before being faced with a lawsuit.