cigarette smoke infiltrating condo wall

Started by SueW3 • 17 replies • 3291 views

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SueW3 (Colorado)
Posts: 14

Posted:

One of our condo owners lives next to a smoker who was recently laid off and is now home smoking 24x7. The condo owners states her condo is now unliveable due to the constant smell of smoke. She has already added the outlet insulators and checked everything she can think of that may be an open road to allow smoke from the adjacent unit into hers.

She is now requesting that at the HOA's expense the HOA investigate the issue and pay for, if necessary, tearing down the walls and adding foam insulation. From what I have read, short of tearing down the building and rebuilding it, it is nearly impossible to stop smoke from migrating from one unit to the other because there are so many possible nooks and crannies between units. It is an older building (1980's I think).

The question I have is - is it the HOA's responsibility to fix this problem?
THanks in advance for any help!

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Sue,
Interesting question. Damned if I know.

I doubt that the non smoker is even going to be satisfied no matter what is done. She may try some large air filtration systems for her unit. The HEPA filter kind I suspect or maybe electrostatic I think they are called.

If there is some clause in your documents that deal with causing a nuisance or disturbing owners or guests, she might look into that. If she is disabled due to chronic lung disease that might be an idea. It sounds like she is fishing around looking for the association to be responsible. probably with advice of lawyer.

I expect this has been brought to the courts before and if you can get Mary to do her internet magic she might be able to find case law about this.

SueW3 (Colorado)
Posts: 14

Posted:

Thanks Robert - I think you pretty much pegged it. It is unclear where the condo owners responsibility stops and the HOA's starts. I certainly understand her frustration, but the board is confused as to what she expects us to do.

I am new to this........who's Mary?
THanks again Robert!

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Who's Mary?
Woe is you.
She is the next Soto Mayor.

Good morning Mary!

EverettC (Maryland)
Posts: 90

Posted:

Ina 2006 decision involving a condo association in Golden, Colorado, the court upheld the right of the condo association to ban the condo owners from smoking in their unit. See the attached decision and newspaper article in case involving Sauve v. Heritage Hills #1 Condominium Association.

While not directly relevant, other courts have also upheld the right of landlords to evict tenants due to their heavy smoking.

Everett

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RobertR1 (South Carolina)
Posts: 5,164

Posted:

Everett,
Thanks for the post, good information.

You state "while not directly relevant, other courts have, etc."

Can you elaborate a little or a lot? I suspect this issue is of interest to a lot of people and I expect will bring up some differing opinions.

Since all we give are opinions, you may want to add your opinion.

SueW3 (Colorado)
Posts: 14

Posted:

Again, thank you Robert and Everett. I suspect the board will have to approach the smoker at some point, however, he is also a homeowner and has lived here much longer than the person complaining. There are too many smokers in this complex to make this a non-smoking community - I don't see that as an option. Which leaves pursuing this as a nuisance.

I guess I'd like to go back to my original question - these are townhome syle condos. The smoker has a unit on either side of him. Interestingly, the adjacent unit on the other side of the smoker has not had a problem with smoke infiltration. If the HOA is responsible for the structural parts of the building, as they usually are wtih condos, is it the HOA's responsibility to pursue and pay for all that is required to make the complaining party's unit smoke-free?

(just a side note - the previous owner did some remodeling in the basement. If that remodeling was done improperly, does the HOA still have to pick up the tab?)

Thanks!!

EverettC (Maryland)
Posts: 90

Posted:

Robert,

In a 2005 case, a Mass. court upheld the eviction of tenants who were pack-a-day smokers (more or less). See the attached article, which describe that case (Harwood Capital Corp. v. Carey), and 2 similar cases, Dworkin v. Paley (1994 Ohio, which ruled that second hand smoke violated the complaining tenant's right to "quiet enjoyment" of their leased unit) and Gainsborough Street Realty Trust v. Halie (1998 Mass. Housing Court (tenant who resided above smoky bar withheld rent and was upheld by Housing Court).

There may be other, more recent cases but I haven't checked.

I said these were not directly relevant because they do not get at Sue's question - whether the HOA is responsible for enforcing no-smoking in the units (at least when, presumably, the smoking arises to a level of nuisance). Also, I haven't read the decisions directly, and at least part of the rationale may be the danger of fire caused by cigarette smoking, even though the articles focus on the second-hand smoking aspect of the issue. Furthermore, I did not check to see if a motion for new trial was granted or if the case was appealed (and if so, whether it was upheld or overturned).

Sue's HOA is in the middle between two owners. What I draw from the Heritage Hills case, is that her HOA can take action against the smokers. Whether her HOA must do so is another question. What is the history regarding enforcement of other nuisances (for example, noise or noxious odors)? Does it have a policy specifically addressing smoking? (I assume not or she would have mentioned it.)

Before jumping to the conclusion that her HOA must take action, I recommend that they consult with their attorney, especially to make sure that higher courts in Colorado have not taken a contrary position as well as to make sure that their governing documents allow them to do so.

All in all, it appears to be a balancing of interests between the two owner's right to enjoy their units and the board's fiduciary duties. I am not persuaded by the fact that the smoker's have lived their longer - society and laws, do change over time. Especially in the area of second-hand smoking, what is now commonly accepted was considered far-out, lunatic fringe just a few years ago. The board has a fiduciary duty to all owners, even those who "just moved in."

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SueW3 (Colorado)
Posts: 14

Posted:

Thank you Everett.

One more question - if we remove the smoking debate, what legal responsibility does the HOA have in trying to find out how the smoke is getting into her unit and consquently, if anything is found, fixing it. Is it unreasonable for the homeowner to expect the HOA to add foam insulation to the adjoining wall?

Thanks again!!

EverettC (Maryland)
Posts: 90

Posted:

Sue,

That is a tough question. My inclination as a director of our HOA [and the issue is less acute if not non-existent in detached single family home communities than in condos or townhouse communities)would be to put the burden on the smokers - "we have received a complaint concerning a nuisance involving second hand smoke coming from your unit and we will assume that the smoke does in fact originate in your unit unless you object within X days."

I would also put the burden of corrective action on the smokers, rather than on the HOA. This would result in outside smoking in a outside designated area [to avoid smoking on balconies, which may or may not solve the problem of infiltration into neighboring units].

I might also consider alternatives such as installation of air filters (not the portable kind, but a more permanent solution) but would want guidance from an expert whether filters and foam would solve the problem. I would be inclined to put the burden of the expense on the smokers - "if you don't want to smoke outside in the designated area, then pay for an expert selected by and reportable to the HOA board."

Just my opinion - as Robert said, I am sure there will be other opinions!

Everett

MaryA1 (Arizona)
Posts: 7,043

Posted:

Looks like Everett beat me to the punch. And, by the way, please don't compare me to Soto Mayer; I'd much rather prefer Anton Scalia!

With regard to the CO case Everett has attached it hinged on the assn's nuisance clause: "The prohibition central to this controversy read as follows: “No nuisance shall be allowed upon the Property, nor shall any
practice be allowed which is a source of annoyance to residents or which interferes with the peaceful possession and proper use of the Property by its residents.” As already specified, the term “Property” includes the building housing the four individual condominium units." There were quite a few tenants who testified to the smoke smell. The court concluded by saying ". . .courts have not specifically extended the 14th Amendment to a fundamental right to smoke. This is especially true here where the plaintiffs' private activities are impacting so negatively the remainder of the community that they choose to join."

Frankly I think the smoking bans have gotten out of control. I'm not a smoker but I do believe smokers should have their rights too; most especially in their own home. If this issue can be resolved w/o imposing a smoking ban I think that would be the best way to proceed. If the assn is resp. for the heating/a/c duct work then it may be their resp. to make adjustments to prevent the penetration of smoke.

JohnB26 (South Carolina)
Posts: 1,569

Posted:

How is the smoke infiltrating the code required fire-wall between the units?
Unless there is shared ventilation ductwork there should not be ANY infiltration!

If there is a shared bathroom and/or kitchen exhaust system ... it is not working properly if it allows ANY cross-flow between units.

If the units are centrally ACed then all units will have smoke from the smokers.
(and the ducts would have INTERNAL smoke detectors and fire dampers)

If the units are individually ACed there should NOT be ANY cross flow.
Any cross flow would be a breach of fire safety integrity.

Open windows?
Hallways?
Fresh air intake ducts?

EllenS1 (Florida)
Posts: 1,148

Posted:

I'm thinking of reporting an adjacent neighbor who cooks with so much garlic it makes my unit smell like a diner. I won't even go into how horrible some smells coming from her bathroom affect my unit. What's a person to do?

MaryA1 (Arizona)
Posts: 7,043

Posted:

Ellen,

Maybe you can invite yourself for dinner and bring along a can of Airwick as a hostess gift! LOL

EllenS1 (Florida)
Posts: 1,148

Posted:

Mary,

I'm glad to see someone with a sense of humor. I thought perhaps someone would think I was serious.

MicheleD (Kentucky)
Posts: 4,491

Posted:

Quote:

Posted By MaryA1 on 09/16/2009 8:47 AM
Ellen,

Maybe you can invite yourself for dinner and bring along a can of Airwick as a hostess gift! LOL

EllenS1 (Florida)
Posts: 1,148

Posted:

Michele,

I am computer ignorant. Where do you get these cute little guys?

MicheleD (Kentucky)
Posts: 4,491

Posted:

Quote:

Posted By EllenS1 on 09/17/2009 3:24 PM
Michele,

I am computer ignorant. Where do you get these cute little guys?

If you click on the little guy rolling around laughing, it will take you to the site that contains the images. Just search and pick one, it will give you the HTML code you need to post it in the threads.

It will look like this:

< a href="http://www.glitter-graphics.com" >< img src="http://dl5.glitter-graphics.net/pub/2252/2252185wpnzk5ff7g.gif" width=40 height=40 border=0 >< /a >

And what you end up with is something like this:

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