Need advice on smoking homeowner complaint

Started by RussV1 • 7 replies • 1418 views

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RussV1 (Vermont)
Posts: 3

Posted:

Hello,

I need some advice...

I am the president of a HOA where a board member has a complaint against the next door neighbor who smokes in their townhouse. He claims that it is getting into his unit and causing the entire family's eyes to burn and their child to cough.

Seeing as how I need to be fair, legal, etc...what would the best way to handle this?

He would like the association to pay for an air quality test and if necessary a fix which is estimated at $16,000 so far to remove all drywall and install a plastic vapor barrier.

I personally think this is an issue between homeowners and could have been handled a lot earlier if they had been getting along..which they don't. No attempt was ever made to work something out between the two.

I don't see where we are responsible for the costs. I am new at this and trying to be realistic and fair. He is the only homeowner that has ever complained of this sort of issue in the association history.

Thanks

GabrielB (Illinois)
Posts: 8

Posted:

Just my 2 cents...

How would you handle the same issue if a neighbor complained about the smell of someone's cooking?

By the way, the drywall between two units (assuming there is no concrete/brick firewall) should be completely sealed at all joints and seams. I wonder if one of the two units has damage to the drywall allowing for the smoke to pass through. But man, how much is this person smoking for it to permeate through drywall?!?

RussV1 (Vermont)
Posts: 3

Posted:

Food smells would be between homeowners and definitely not our concern...of course with smoking it is considered deadly.

I believe the neighbors smoking is chimney like.

The neighbor was living in unit before the complaining board member moved into theirs. They have been there with no complaints about smoking for a year now (think winter time in VT with everyones windows closed).

The homeowner complaining is talking "improper building of structure" at the moment. My thoughts are that a home inspection was done during purchase..

BrianB (California)
Posts: 2,820

Posted:

don't do an air quality test... it won't prove anything anyway (ie, what is the actionable level of smoke? how do you determine it?).

Let the owners hash it out, and unless one provides engineering proof that something structural is incorrect, it's a HO problem. should a air duct be shared, should an electrician have pushed a hole through both side, etc., then you have something the HOA MIGHT be responsible for (see your insurance carrier for that). Until then, it's not the HOA's business what happens between two owners who can't talk to each other.

RussV1 (Vermont)
Posts: 3

Posted:

The complaining owner wants an air quality test. Fine with us if he gets one..I sure don't think we should pay for one.

Probably best to see what the results are....my 2 cents

JosephW (Michigan)
Posts: 882

Posted:

Smoking is becoming a very complex issue for associations, especially if the wall in question is common area. Take a look at the various articles at:
http://www.communityassociations.net/issues_smoking.html

and then get a quick opinion from your attorney as to whether it is an association issue or not.

Joe

Joseph West
Official HOATalk.com Sponsor
Community Associations Network, LLC
www.CommunityAssociations.net
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BrianB (California)
Posts: 2,820

Posted:

joseph is correct, courts are deciding in favor of and against the issue, depending on state, it seems. the issue is going to take years to sort out.

KirkW1 (Texas)
Posts: 1,665

Posted:

I say save your money and simply tell the guy no. I wouldn't spend any money on a lawyer until you hear from an attorney representing the owner.

Here is my theory (worth the cost I charged):
If you spend money on the attorney, then you will spend $200 or more per hour. And the attorney will surely have to spend some time looking through court cases to give you an opinion. And that time adds up pretty fast.

And what does this buy you? If you tell the guy no, nothing really. Because it still won't stop him from getting an attorney if they are really inclined to do so. And when they owner gets an attorney you will again spend more money on the response.

If you tell the guy yes, then it has cost you the expense of what you granted as well as the attorney. While if you had just gone with no, you wouldn't spend any more money to have researched the case and decided it wasn't worth fighting.

So while an attorney might give you interesting information, it will cost you a lot of money. And it really won't reduce the cost any no matter what happens. Further, this kind of thing is likely to make the news if the HOA were found to be responsible for the matter.

Finally think of it this way: the rules are the same for everyone. This guy either knew the rules or failed to do diligence to find out ahead of time. So if there was no rule against smoking he took a chance that one day he would be invaded by the smell of the smoke. He either made an informed decision, or failed to consider. Neither of these are your problem.

Finally, why bother with an air quality test? If you take responsibility skip to the fix and save the money on the test. The only possible purpose for providing a test is to give ammunition to him for another suit. And if you fix the problem, then you must be accepting some responsibility for not having prevented his being exposed.

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