Complaint

Started by SashaE1 • 28 replies • 696 views

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SashaE1
Posts: 110

Posted:

Our HOA has a homeowner who is complaining that their neighbor is smoking to the point of it being a nuisance. Our HOA has a clause which states no odor, etc should become a nuisance. There is also a no smoking policy which reiterates smoking shouldn’t become a nuisance. In this case the homeowner received the complaint is claiming that the person they are renting to deny that they are smoking. She said she spoke to the man he rents to and he said he does not smoke. The complaining party says this is not true and has documented times of when the smoke enters their home as well as his visitors who have witnessed this too. What is the best way to handle this when one party complains of smoking nuisance and the other party denies it?

AugustinD
Posts: 5,144

Posted:

In my experience, the complainant is stuck with documenting the smoke by having witnesses (preferably management and/or board members) come to the complainant's unit and testify that they smelled smoke.

I am not optimistic. I agree that smoking complaints should be taken seriously, but from my reading, in most states, the non-smokers usually have to suffer and seriously consider just moving.

SheliaH (Indiana)
Posts: 6,964

Posted:

It's true that odors shouldn't become a nuisance, but I suspect when this was written, the thought was about smells that billow throughout the area and affects lots of people (such as smoke from burning leaves).

In this case, this appears to be more of a dispute between neighbors and the HOA should stay out of it, especially since it's a he said/she said situation. I suppose you could offer to arbitrate, but if the complainant has evidence of smoke entering his house, he can also pursue this through legal means if the owner/landlord can't or won't resolve the problem. That said, I'm also wondering if this is an everyday thing, is there a health consideration (e.g. the complainant has major allergies), is weed (or meth?) involved, etc. That type of information might help give the complainant some idea of how successful a Small Claims court action might be.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By SheliaH on 10/14/2020 8:29 AM
In this case, this appears to be more of a dispute between neighbors and the HOA should stay out of it[snip]

I disagree. SashaE is in California. In California, HOAs/Condos are required to enforce the covenants.

I should have noted in my prior post that the Complainant could take this to IDR as described at the davis-stirling.com site.

Sasha, see also https://www.davis-stirling.com/HOME/Controlling-Smoke

KerryL1 (California)
Posts: 14,550

Posted:

Sasha wrote: "There is also a no smoking policy which reiterates smoking shouldn’t become a nuisance," but it doesn't make sense to me. Dos it say "n smoking" or not.

So, Sasha, please quote this "policy" exactly and tell us if it's a rule, CC&R, or what? Also remind us if you're on the Board.

Assuming it is some kind of HOA policy and someone on the board or with property mgr. confirms the violation, th owner can be called cohering and fined. It is not neighbor/neighbor dispute.

Our PM has sent courtesy letters to resident to tell them they must smoke in their units or off our premises and the letter has been sufficient in most cases. We did hav c ve to go to IDR in one case back in '14, and the smokers finally agreed to not smoke on their balcony. We now have aa rule against smoking in any exclusive use common area.

SashaE1
Posts: 110

Posted:

Kerry, I am currently on the board as the member at large. The clause in the CCRS is the standard no nuisance, quiet enjoyment etc. clause. The HOA also has a rule for no smoking. This rule states that there should be no smoking in the common area which includes front and back patios and balconies that are exclusive use common areas. Our HOA also has two pools and that is common area so no smoking is allowed there either. Smoking is only allowed inside the condo without it becoming a nuisance to neighboring residents meaning the smoke should not enter the other condos if they are smoking within their condos. This complaint was brought to a hearing two weeks ago and the homeowner receiving the complaint said that their tenant is not smoking. The man homeowner making this complaint submitted detailed smoking logs, letters from visitors to his condo stating that they were present when the smoking entered his condo and it was very bothersome and a doctor’s note stating the homeowner complaining had lung irritation and that he is allergic to smoke. The board decided not to fine since the homeowner receiving the complaint said she went to her condo and that she did not find any evidence of smoking and that her tenant confirmed they do not smoke. Management said they will look into the possibility of IDR since this homeowner continues to complain of a smoking nuisance but if that is not possible they will recommend that the board leave this as a neighbor to neighbor issue. Yes Augustin is correct, our HOA is in Monterey California. Suggestions?

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By SashaE1 on 10/14/2020 9:50 AM
Management said they will look into the possibility of IDR since this homeowner continues to complain of a smoking nuisance but if that is not possible

I think something is being lost in translation here. The complainant (meaning the resident of the unit where smoke is intruding and becoming a nuisance) has a legal right to request IDR. IDR is not merely "possible"; when a HOA owner requests IDR in California, the HOA has to provide it. See the Davis-Stirling.com site.

Quote:

Posted By SashaE1 on 10/14/2020 9:50 AM
they will recommend that the board leave this as a neighbor to neighbor issue.

If they do this, then they are violating California law requiring a HOA/condo to enforcing covenants; statutory requirements for IDR; and the further statutorily required dispute resolution that comes after a failed attempt at IDR.

SashaE1
Posts: 110

Posted:

Thanks Augustin. I’m reviewing the information on the link you shared. Management explained that IDR is between the HOA members and that the party complaining of the smoking nuisance can request it but the the other HOA member (the one receiving the complaint regarding their tenant smoking) doesn’t have to accept it. That’s why management said if IDR is possible. Is there another way the homeowner complaining can go about making sure they are offered IDR as required by the link you shared?

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By SashaE1 on 10/14/2020 10:33 AM
Management explained that IDR is between the HOA members

What your management is saying is not accurate. From California Civil Code 5910:

"(c) If the procedure is invoked by a member, the association shall participate in the procedure."

https://www.davis-stirling.com/HOME/Statutes/Civil-Code-5910#axzz2CgHrcBrn

The complainant should name both the Association and the offending member in her/his complaint requesting IDR. The complaint against the Association is its failure to enforce the covenants as required by the case law cited at https://www.davis-stirling.com/HOME/Duty-to-Enforce

JohnC77 (California)
Posts: 562

Posted:

This is a homeowner to homeowner issue and the HOA should not be involved UNLESS your CCRs specifically address smoking on one's balcony.

SheliaH (Indiana)
Posts: 6,964

Posted:

Of course, the HOA has to enforce the covenants - that's pretty much the rule in every HOA I've heard of. However, you also know there are times when the board has to prioritize what it can do because of time and costs. Some of these cases only affect two or three people who can't or refuse to act like adults, discuss the situation calmly and come to some sort of compromise. And sometimes people just want someone else to clean up their mess, whether it's parents who let their kids run wild all over the neighborhood causing mayhem or owner/landlords who will not ensure their tenants behave.

Personally, I would think if the complainant has gone through the trouble of gathering witnesses who can testify on the stink (and could go to small claims court and possibly win), the owner/lanlord would conclude that perhaps a meeting with the tenant and complainant to squash this would be a good idea. It's difficult for a bunch of people to all tell the same lie and just because the tenant says "I'm not smoking" doesn't automatically mean he or she is telling the truth. What else do you expect your tenant to say - he's probably not going to admit to it because he doesn't want to risk the lease not being renewed or being booted out (especially if the lease has something about not smoking).

In any case, if IDR is an option, that's what I'd go with that at this point - hopefully the HOA can get someone who doesn't have any relationship with it, the owner/landlord, tenant or complainant to keep things fair. We know owner can enforce CCRs against each other, so perhaps it should be said to the parties that going to IDR is REQUIRED before the board takes further action.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

SashaE1
Posts: 110

Posted:

Thanks everyone for the information.

KerryL1 (California)
Posts: 14,550

Posted:

Can you please give us the exact wording of the "rule," Sasha? You imply smoking cannot be done in common areas but then you toss in "exclusive use common areas, so I don't know what the rule says.

If the complainant can prove some one in that unit is smoking on their balcony or other exclusive use common area, and it IS against the rules, the Board should act to enforce the rule. It's part of the job!

The best way to prove it is to have management, other staffer, or a director confirm the odor and where it's coming from. The complaint's friends' testimony doesn't cut it.

Why should the complainant have to jump though small claims court or IDR hoops when the HOA's rules are clear??

JohnC46 (South Carolina)
Posts: 14,265

Posted:

If I understand Saha, smoking any common area, even a limited use one is against the Rules. Smoking in ones unit is not against the rules. If there is any common ventilation between units, therein lies the problem of the "smell".

Of course, many non-smokers are a PIA.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Ha - agreed - I am one of those non-smokers. I rather consider myself an arbiter of what is fine and good in the world :-). And, tobacco smoke is appalling and gross.

So, if I was living there and someone was smoking and it was in their unit - and I was able to figure out who it was - I would be ALL over it.

It would be worth literally ever penny I could find to press the case under the rules as have been related. I would happily lose money on the court action to make life as miserable for the smoker(s) as they had made it for me.

JohnT38 (South Carolina)
Posts: 1,631

Posted:

Quote:

Posted By GeorgeS21 on 10/14/2020 2:29 PM
Ha - agreed - I am one of those non-smokers. I rather consider myself an arbiter of what is fine and good in the world :-). And, tobacco smoke is appalling and gross.

So, if I was living there and someone was smoking and it was in their unit - and I was able to figure out who it was - I would be ALL over it.

It would be worth literally ever penny I could find to press the case under the rules as have been related. I would happily lose money on the court action to make life as miserable for the smoker(s) as they had made it for me.

It's going to be interesting to see how this plays out as pot becomes more and more legal in states. Ironically some of the pot smokers who can't stand 'smokers' will be the very ones that are huffing and puffing in and around their homes. I could be wrong but depending on how this plays out you might be happily losing money on a regular basis.

KerryL1 (California)
Posts: 14,550

Posted:

Our HOA rules against smoking on the balconies/patios/decks or in any common area applies to weed too. Why would it be treated differently? Oh, "medicinal purposes?" Every condo here has a nice oven to bake brownies & cookies.

JohnT38 (South Carolina)
Posts: 1,631

Posted:

Quote:

Posted By KerryL1 on 10/14/2020 3:11 PM
Our HOA rules against smoking on the balconies/patios/decks or in any common area applies to weed too. Why would it be treated differently? Oh, "medicinal purposes?" Every condo here has a nice oven to bake brownies & cookies.

I didn't say that it should but one thing I've learned over the years is you don't get in the way between someone and their buzz when they're looking to get happy or get their fix. Thankfully it's not an issue for me. Nature took care of the issue since pot started making me paranoid about 40 years ago and I had to stop. Long live the 70's and water cooled bongs! Thanks to this discussion I just might see if I can stream any Cheech & Chong movies.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

How exactly is the smell getting into the home? Just curious. For me if someone is leaving a window or a door open then complains about smoking next door, they created their own problem. Yes, you should be able to leave your windows/door open if you want. However, you also can't complain when the flies come in or "smells".

Former HOA President

KerryL1 (California)
Posts: 14,550

Posted:

In multi-story condos it's easy for smoke to go into other' balcony doors or windows. It's even easier for smoke to go form one balcony to another.

But.....if it's an old condo, it's possible as someone wrote that the smoker is inside the i unit and the smoke is coming through he AC system vents.
,
I'd think this would be a very old building.

JohnC77 (California)
Posts: 562

Posted:

Quote:

Those brownies are the best.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By SheliaH on 10/14/2020 11:54 AM
Of course, the HOA has to enforce the covenants - that's pretty much the rule in every HOA I've heard of.

I happen to think it is quite often not the rule. Instead, the covenants often say the HOA does not have to enforce the covenants; state statutes often do not help on the point; and one neighbor is stuck (IMO) battling another neighbor with threats of lawsuits to get a covenant enforced.

AugustinD
Posts: 5,144

Posted:

Quote:

I plan to assist with the GoFundMe site George sounds ready to start for his adventures in litigation to stop second-hand smoke (from cigarette or that schizophrenia-inducing drug colloquially called "weed.")

Some condos are former apartments and are particularly poorly sealed against odors/smoke from adjoining units.

The news reports I have read in the last few years indicate the smokers (of whatever) are starting to lose their right to smoke anywhere that may expose others to their second-hand smoke.

KevinT3 (California)
Posts: 13

Posted:

https://www.minnpost.com/environment/2020/03/the-battle-over-wake-surfing-has-made-its-way-to-the-minnesota-legislature/

JenniferG11 (Texas)
Posts: 667

Posted:

How is a unit owner supposed to control whether odors travel from inside one unit to another? Seems like one of those unenforceable rules.

If the issue is how the building is constructed involving common elements, individual owners can't do anything about that, and then they can't smoke in their own homes, though it's within the rules to do so?

Neighbor to neighbor issue. Just like certain levels of noise.

JenniferG11 (Texas)
Posts: 667

Posted:

Quote:

Posted By SheliaH on 10/14/2020 11:54 AM
Of course, the HOA has to enforce the covenants - that's pretty much the rule in every HOA I've heard of. However, you also know there are times when the board has to prioritize what it can do because of time and costs. Some of these cases only affect two or three people who can't or refuse to act like adults, discuss the situation calmly and come to some sort of compromise. And sometimes people just want someone else to clean up their mess, whether it's parents who let their kids run wild all over the neighborhood causing mayhem or owner/landlords who will not ensure their tenants behave.

Personally, I would think if the complainant has gone through the trouble of gathering witnesses who can testify on the stink (and could go to small claims court and possibly win), the owner/lanlord would conclude that perhaps a meeting with the tenant and complainant to squash this would be a good idea. It's difficult for a bunch of people to all tell the same lie and just because the tenant says "I'm not smoking" doesn't automatically mean he or she is telling the truth. What else do you expect your tenant to say - he's probably not going to admit to it because he doesn't want to risk the lease not being renewed or being booted out (especially if the lease has something about not smoking).

In any case, if IDR is an option, that's what I'd go with that at this point - hopefully the HOA can get someone who doesn't have any relationship with it, the owner/landlord, tenant or complainant to keep things fair. We know owner can enforce CCRs against each other, so perhaps it should be said to the parties that going to IDR is REQUIRED before the board takes further action.

Well, the owner said she went into the unit and found no evidence of smoking. It's very difficult to hide unless one perhaps only smokes very occasionally and uses a good product to erase it.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

"... the owner went inside and found no evidence ..." key words. And meaningless given the owner's perspective, perhaps.

JenniferG11 (Texas)
Posts: 667

Posted:

Quote:

Posted By SashaE1 on 10/14/2020 10:33 AM
Thanks Augustin. I’m reviewing the information on the link you shared. Management explained that IDR is between the HOA members and that the party complaining of the smoking nuisance can request it but the the other HOA member (the one receiving the complaint regarding their tenant smoking) doesn’t have to accept it. That’s why management said if IDR is possible. Is there another way the homeowner complaining can go about making sure they are offered IDR as required by the link you shared?

I think that the homeowner needs a witness that is not a friend or relative of theirs.

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