Loitering in Common Area

Started by IvanN • 8 replies • 3007 views

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IvanN (Massachusetts)
Posts: 7

Posted:

One of the owners in out condo has for the past two years been sitting all day everyday on the porch in front of the main doors. Him and his wife are there everyday smoking cigars with their friends. Some of the owners are unhappy about having to walk through them and the smoke every time that go through the front doors. They are proposing a non-loitering resolution at the next association meeting. The lobby smells of cigar smoke and every time you come home that is all you smell. When you are sitting on your deck depending on how the wind is blowing you smell the cigar smoke. Doing the winter they even plug one of the big restaurant style heaters in the front increasing the electricity bill.

All the units have decks, but they insist on sitting on the front with their lawn chairs everyday. The owner says it's his right to sit there and any anti-loitering resolution passed would be illegal.

Has anyone had this issue? How did you deal with it or is there nothing that can be done about the situation.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Contact the fire marshal. I believe due to fire laws that can not smoke within 50 feet give or take from a building. Can post that and set up a smoking area there.

Former HOA President

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Ivan

Perhaps the easiest thing to do is for the BOD to pass a No Smoking Allowed on Common Properties, Rule & Regulation.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Ivan,

Ignore the loitering issue.

Instead, like many federal buildings, adopt a rule that smoking may not be within 40 feet of entrances to the building.

KerryL1 (California)
Posts: 14,550

Posted:

Yes, rather make a rule that no smoking is allowed in the common areas, or make a rule that none is allowed xx feet from common area doors to the interior. Our rule to forbid smoking in all of our common areas was passed easily by the board and no negative comments came to us when we sent the proposed rule out for 3-day owners comment period (required in CA but maybe not elsewhere).

Our original rules prohibit any residents' furniture being placed in, or "donated" to, the common areas, so you can make that a rule too.

We also have a rule that no one may use common area electricity.

Don't let these bullies make your community unpleasant!

Just curious, but do you have any furniture on this front porch?

BobD4 (up north)
Posts: 1,002

Posted:

IvanN(Mass):

The Front Entrance 'deck chair & cigar club', may really be about brazen misuse of common element areas. But 'loitering' measures will be a tougher legal sell nowadays than "suppressing harmful second hand smoke".

You might check out a Mass. legal article July 18/14 “Clearing the Air: Boards Must Respond When Residents Complain about Secondhand Smoke” by Patrick Brady http://www.meeb.com/clearing-the-air-boards-must-respond-when-residents-complain-about-secondhand-smoke/ ( " . . .Even if the mitigation measures prove inadequate and owners reject a smoking ban, boards will be able to demonstrate that they have done all they could to resolve the problem. That won’t prevent suits filed by non-smokers, but it will give boards a reasonable defense against them. . . "

In 2015 a rule banning outdoor smoking could exempt some downwind common element areas at some distance from front & other entrances.

Even the term "loitering" raises property & civil rights concern. If your "condo" is subject to Mass Ch 183A - Condominiums, suggest take a look at Section 5(d) . . .

(d) Each unit owner may use the common areas and facilities in accordance with their intended purposes without being deemed thereby to be hindering or encroaching upon the lawful rights of the other unit owners.

IvanN (Massachusetts)
Posts: 7

Posted:

Thanks everyone for your advice. It seems the smoking issue is the one to pass a resolution on, not the loitering one.

There is no furniture in the porch area.

I should have mentioned that the condo is in New Hampshire.

PitA
Posts: 1,416

Posted:

?why?

unless you are referring to the motto:

"Live free, or die."

GenoS (Florida)
Posts: 4,276

Posted:

Indeed. I've always thought New Hampshire peaked too soon in the slogan arena by nailing it in 1. It's kind of hard to top "Live Free Or Die".

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