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Posted By CathyA3 on 03/10/2022 11:52 AM
Kerry referred to prohibiting smoking in the common elements, a restriction that's becoming increasingly prevalent but older CC&Rs did not refer to smoking at all. (In fact some condominiums are prohibiting smoking inside buildings altogether.) This is a more restrictive amendment that's resulting from a change in our understanding of the dangers of smoking as well as from the association's need to deal with known unsafe conditions on the premises. If you have residents who are disabled due to respiratory conditions, you'll have a potential Fair Housing complaint on your hands if you don't address smoking indoors.
If the CC&Rs do in fact have a statement such as the one you quoted, I'd be interested to keep an eye on future developments. There is a natural built-in conflict between "free use of your property" and the limits on behavior that are necessary in communal living settings such as condos.
It's possible that your state laws lean more toward free use of property, and other states less so. But IMHO, "free use of property" includes the right to place additional limits if property owners decide at some point that these limits are justified.
Kerry said that he agrees that if a CCR has a term forbidding more restrictive amendments, than you are SOL if you want more restrictive amendments. So what are you agreeing with then? You agree with kerry's opinion or you agree that you can make more restrictive amendments in this situation?
I appreciate your concern for smoking, but as numerous case laws have stated, the contract is the contract that you signed. As long as it doesn't violate higher governing authorities, its perfectly OK. I'm deeply troubled that you seem to say in the same sentence that HOA's have a right to place limits on a property but then dismiss the contract that the HOA agreed to that prevents more restrictive amendments. Which is it? Do you agree that we all signed a contract and are bound by the terms of the contract or is it that you can do what ever you feel is justified?
For reference, here's a case from 2015 in Idaho that's cited a lot: Idaho Judge wrote in 2015 in the Greenfield v. Wurmlinger case, in short: "all doubts and ambiguities are to be resolved in favor of the free use of land...restrictions that are not clearly expressed will be resolved in the free use of land."
And then there's the nationwide Restatement Third, Property (Servitude) s6.7.
The Restatement is a compilation of case law nationwide. It summarizes trends in the courts and is regularly updated. Along with a summary, the Restatement cites specific case law, state by state, on each topic it treats. The Restatement has a section on "Common Interest Communities"
In the Restatement, go to Section 6.7 (3). There you will find, as a summary of the case law nationwide, verbiage like the following (or verbatim the following): "If the declaration grants a general power to adopt rules, the association also has the power to adopt reasonable rules designed to protect community members from unreasonable interference in the enjoyment of their individual units and the common property caused by use of other individually owned units. Absent specific authorization in the declaration, the association does not have the power to adopt rules, beyond what's stated above, that restrict the use or occupancy of, or behavior within, individually owned units. "
