Smoke

AllisonD (Florida)
Posts: 449

Posted:

Ours is an HOA with private homes on a third to a quarter acre lots. Most of the homes have screened in patios with pool enclosures. Typical Florida pool home. My question is if anyone not in a condo situation has experience with homeowners smoking cigarettes/cigars/pipes and also using BBQ or smokers where the homeowner next door is complaining of the smoke. These are private homes and the people are smoking on their own patios. The complaining homeowner told her neighbor she is not allowed to smoke on her patio anymore because it gives her a headache. Its not like she sits out there and chain smokes all day, but sometimes she sits out with her computer and a cup of coffee. If she does not comply with the complainer, she feels the complainer will go to the board with her complaint. I am not a smoker but I would never ask a neighbor to stop smoking, but that is just me....thoughts?

JanetB2 (Colorado)
Posts: 4,219

Posted:

Most private home HOA subdivisions are in place to take care of "common areas" and insure that homes are taken care of with regards to front landscaping and fencing. What people do in their private back yard behind their privacy fence is their own personal business. If your CCR's do not regulate back yards I would stay out of the situation and let the neighbors work it out for themselves.

In my last subdivision some neighbors would have small patio fireplaces on much smaller lots and yes neighbors would sometimes get smoke coming into their yard. If someone complains to the HOA your first question to them should be, "Show me what section of the CCR's they have violated". That generally will alleviate the problem.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Allison,

Not all complaints fall under the control of an association. Unless there is a clause in your CC&R's regulating smoking and/or grilling then your BOD has no control over this situation.

It sounds like the complaining homeowner is hypersensitive to smoke and its various odors, all of which is common in single-family residential neighborhoods. My advice to the complainer would be to seal her house, filter her air, and stay indoors.

KerryL1 (California)
Posts: 14,550

Posted:

Are you on the board, Allison?

TimB4 (Tennessee)
Posts: 21,059

Posted:

I agree, this is a neighbor v neighbor complaint and not, repeat NOT, an Association issue.

If the complainer does go to the Board, the Association should say as much.

Hopefully the two neighbors can work it out.

LarryB13 (Arizona)
Posts: 4,099

Posted:

The board may have a role to play, albeit fairly minor. If the complaining party insists that she has a medical issue with the smoke, I think that under the Fair Housing Act that the association must make reasonable accommodations by allowing her to install whatever air handling equipment she may need at her expense. This should not be to hard to accommodate as most of the alterations to her property will likely be indoors and unseen by others.

AllisonD (Florida)
Posts: 449

Posted:

I am the president of the board and I completely agree with you all that is not an association issue. I like the suggestion that we might like to suggest to the complainer that she has permission to install ventilation equipment if needed. Thanks very much. It's always good to come to this message board and make sure we are acting reasonably. I suspect we will get a complaint soon.

BobD4 (up north)
Posts: 1,002

Posted:

Quote:

Posted By LarryB13 . . . Unless there is a clause in your CC&R's regulating smoking and/or grilling then your BOD has no control over this situation.

- If your jurisdiction begins to zealously fight second hand smoke - like mine has - it can be murder for landlords and condo management ( & ultimately public health authorities & the courts). Yes, second hand smoke has health hazards and aggravates respiratory problems. Yes there are claims that inside-unit smoking substantially elevates master & individual insurance premiums.

- In perspective from the Tennessee OAK TREE NIGHTMARE Lane v. WJ Curry & Sons, 92 S.W.3d 355 (Tenn. 2002) https://www.courtlistener.com/opinion/1060354/lane-v-wj-curry-sons/ which recites in its FN # 11

11] In one of the first published private nuisance cases, William Aldred's Case, 77 Eng. Rep. 816 (1610), the plaintiff filed suit because the defendant "erected a hogstye so near the house of the plaintiff that the air thereof was corrupted." Id.

The plaintiff claimed that he was "disturbed in and hindered from enjoying" his property. Id. In response, the defendant argued that the plaintiff "ought not to have so delicate a nose that he cannot bear the smell of hogs." Id. at 817.

The court found for the plaintiff, concluding that "it may be that before time of memory [a landowner has had a right to] wholesome air" on his property. Id. at 821. The defendant was thus found liable for depriving the plaintiff of the "use and profit of his house." Id. at 821-22.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By AllisonD on 01/21/2017 4:45 AM
I am the president of the board and I completely agree with you all that is not an association issue. I like the suggestion that we might like to suggest to the complainer that she has permission to install ventilation equipment if needed. Thanks very much. It's always good to come to this message board and make sure we are acting reasonably. I suspect we will get a complaint soon.

Do not give her blanket permission for ventilation equipment as she seems like the type to go overboard.

AllisonD (Florida)
Posts: 449

Posted:

Quote:

Posted By JohnC46 on 01/21/2017 7:55 AM

Posted By AllisonD on 01/21/2017 4:45 AM
I am the president of the board and I completely agree with you all that is not an association issue. I like the suggestion that we might like to suggest to the complainer that she has permission to install ventilation equipment if needed. Thanks very much. It's always good to come to this message board and make sure we are acting reasonably. I suspect we will get a complaint soon.

Do not give her blanket permission for ventilation equipment as she seems like the type to go overboard.

I agree with this, and you are right! She loves to control and pounces on the new residents and tenants until they figure her out and then they go running for the hills. But I have to take everything seriously because regardless of the fact that she is a nut-case (and even more so because she is a nut case), this does not mean there isn't validity in some complaint she has. Unfortunately, the neighbor will be staying inside her house and miss this beautiful Florida weather because she is afraid of the complainer. The bullies win. Sad.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By JohnC46 on 01/21/2017 7:55 AM

Posted By AllisonD on 01/21/2017 4:45 AM
I am the president of the board and I completely agree with you all that is not an association issue. I like the suggestion that we might like to suggest to the complainer that she has permission to install ventilation equipment if needed. Thanks very much. It's always good to come to this message board and make sure we are acting reasonably. I suspect we will get a complaint soon.

Do not give her blanket permission for ventilation equipment as she seems like the type to go overboard.

I suspect that she will have a miraculous recovery once she hears those magic words, "At your own expense."

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By LarryB13 on 01/21/2017 9:21 AM

I suspect that she will have a miraculous recovery once she hears those magic words, "At your own expense."

LOL

AllisonD (Florida)
Posts: 449

Posted:

Quote:

Posted By JanetB2 on 01/21/2017 11:15 AM

Posted By LarryB13 on 01/21/2017 9:21 AM

I suspect that she will have a miraculous recovery once she hears those magic words, "At your own expense."

LOL

Too funny!

MelissaP1 (Alabama)
Posts: 13,836

Posted:

I would buy them a box on incense and tell them to light them up! NOT a HOA even though they will try...

Former HOA President

PitA
Posts: 1,416

Posted:

If someone complains to the HOA your first question to them should be, "Show me what section of the CCR's they have violated".

AllisonD (Florida)
Posts: 449

Posted:

Quote:

Posted By PitA on 01/22/2017 7:09 AM
If someone complains to the HOA your first question to them should be, "Show me what section of the CCR's they have violated".

We have a provision in our docs that says "No owner, occupant or guest shall use any of the properties or permit same to be used in a manner which is unreasonably disturbing, detrimental or a nuisance to the owners, occupants or guests of other lots...". Although it does not seem unreasonable to be able to smoke on your own patio, I am assuming the complainer will say it is because it gives her a headache. She gives me a headache so I might use this provision as well!

My first inclination is to ask what section is being violated. But its like a game of chess, I want to be a few steps ahead.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By AllisonD on 01/24/2017 9:42 AM
We have a provision in our docs that says "No owner, occupant or guest shall use any of the properties or permit same to be used in a manner which is unreasonably disturbing, detrimental or a nuisance to the owners, occupants or guests of other lots...". Although it does not seem unreasonable to be able to smoke on your own patio, I am assuming the complainer will say it is because it gives her a headache. She gives me a headache so I might use this provision as well!

My first inclination is to ask what section is being violated. But its like a game of chess, I want to be a few steps ahead.

She is the one making the claim. It is up to her to find some legal precedent that a person smoking on their own patio is creating a nuisance for someone who lives 100 feet away. If I were running your association my response would be that this is not an association issue and that she is welcome to hire an attorney and file all the lawsuits she wishes. Even a simple lawsuit will normally cost the plaintiff about $20,000 at a minimum, so I would not lose too much sleep waiting for the process server to knock on my door.

AllisonD (Florida)
Posts: 449

Posted:

Quote:

Posted By LarryB13 on 01/24/2017 11:59 AM
Posted By AllisonD on 01/24/2017 9:42 AM
We have a provision in our docs that says "No owner, occupant or guest shall use any of the properties or permit same to be used in a manner which is unreasonably disturbing, detrimental or a nuisance to the owners, occupants or guests of other lots...". Although it does not seem unreasonable to be able to smoke on your own patio, I am assuming the complainer will say it is because it gives her a headache. She gives me a headache so I might use this provision as well!

My first inclination is to ask what section is being violated. But its like a game of chess, I want to be a few steps ahead.

She is the one making the claim. It is up to her to find some legal precedent that a person smoking on their own patio is creating a nuisance for someone who lives 100 feet away. If I were running your association my response would be that this is not an association issue and that she is welcome to hire an attorney and file all the lawsuits she wishes. Even a simple lawsuit will normally cost the plaintiff about $20,000 at a minimum, so I would not lose too much sleep waiting for the process server to knock on my door.

Agree. Thanks for the help!

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

We have a provision in our docs that says "No owner, occupant or guest shall use any of the properties or permit same to be used in a manner which is unreasonably disturbing, detrimental or a nuisance to the owners, occupants or guests of other lots...". Although it does not seem unreasonable to be able to smoke on your own patio, I am assuming the complainer will say it is because it gives her a headache. She gives me a headache so I might use this provision as well!

The Owner filing any action would have to Prove Beyond Reasonable Doubt that they are right; however, the Court will also consider other owner's rights with potential higher standard to the reasonable use of their Own Personal Property which they are paying large sums of money. If remember from above ... you have fairly large lots ... a count will consider what is "reasonable" regarding the distance on such large lots.

Personally I would let them duke it out ... most likely they will come to terms. You have to estimate the probability of an owner going after the HOA ... so what do you estimate that probability?