A Problem with Wood Smoke

Started by RebeccaA2 • 16 replies • 12663 views

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RebeccaA2 (Virginia)
Posts: 4

Posted:

A year ago, a homeowner complained to the HOA Board that smoke from his neighbor's firepit was aggravating his
asthma. He wanted the Board to take action based on the language in the bylaws prohibiting activities that were
"noxious or annoying". Board members didn't think there was anything they could do since burning in a
firepit is not illegal. Recently the homeowner advised the Board that asthma is covered under the Americans with Disabilities Act. He also claimed the HOA could face a $55,000 fine if it does not require the owner of the firepit
to move it where smoke will not migrate to the neighbor's lot. Has any other HOA Board had to deal with a similar situation?

AnnaD2 (Florida)
Posts: 960

Posted:

Rebecca, I'm sure you'll get some replies to your questions. Right now I'm scratching my head...and I'm sure others are too. I (personally) have never had to deal with this problem. You said there are no "laws" about this. I take it your county allows fire pits?

Being in Florida I cannot imagine ANY fires being allowed on ANY property....so your situation puzzles me. Every lot must have a lot of land. I could be wrong.

If it were me, I'd advise the person who has the problem to simply close their windows. But as I said....this problem is "foreign" to me. I'll shut up now and wait for those who have had "your" problem to respond.

DanielH1 (California)
Posts: 482

Posted:

Is the firepit on private property or on a Common Area (even if only used by one unit)?

If the firepit is technically on private property, the HOA can suggest that the homeowner sue the neighbor. Explain that the HOA governs Common Areas, not private areas.

If the firepit is technically on a Common Area, move or remove the firepit. A firepit isn't worth going to court over.

You might also explain to the homeowner that, when they bought their home, they were aware of the firepit or should have made an effort to be aware of the firepit.

Since the homeowner is threatening to sue, the HOA should immmediately hire a lawyer. Raise fees immediately and explain to the HOA that extra fees are needed hire a lawyer to defend a probable lawsuit. The homeowner will either have to carry through on her threat (while paying higher fees and getting the evil eye from the other homeowners) or do an about-face and be less threatening.

RebeccaA2 (Virginia)
Posts: 4

Posted:

The firepit is on private property, but the lots are very small. It's a portable unit that was added long after the person with
asthma purchased his home. If we were talking about outdoor speakers rather than a firepit and the issue was loud music rather
than smoke, would the Board tell the homeowner to just stay in his house and close his windows or would they take action against the
person making the disturbance? With firepits, chimineas, and other outdoor fireplaces becoming more popular, HOA communities will eventually need to develop fair policies to deal with them. Since the situation in our community is a health issue, we'll need to
address it sooner rather than later. The Board probably should not have dismissed the matter when it was first brought to their attention a year ago.

JohnB26 (South Carolina)
Posts: 1,569

Posted:

Fire Code(s) probably state that the 'pit' must be a minimum of 10' away from any structure and 'installed' on a fire-resistant surface (not a wooden deck) etc etc etc

Call county or local code compliance and your local fire dept

No more problem

GlenL (Ohio)
Posts: 5,491

Posted:

Rebecca, this really is a question for the HOA's attorney as to whether or not this violates ADA and whether or not the HOA has a duty in this matter or whether it is a neighbor dispute. It would seem to me that no matter where the fire pit was placed it is at the whim of the wind where the smoke will travel, if the neighbor is downwind then that is where the smoke will go.

Studies show that 5 out of 4 people have problems with fractions

BrianB (California)
Posts: 2,820

Posted:

glen and daniel's advice is solid.. proceed carefully and cautiously, but no need to prep for a lawsuit yet.

The firepit on private property makes it the problem of neighbor vs neighbor, and every one here will give you the same advice: let them sue each other, or involve fire departments, dog pounds, county code enforcers, etc..

the issue with the covenants covering annoying actions is a tiny bit problematic, but my first defense would be to establish a list of said behaviors that the HOA WILL do something about. Just make sure to stay away from smoking, wood burning, etc.. In fact, were i to make such a list, i would specifically put in the introduction to it that the HOA list does NOT include any activity that is regulated by a greater/outside enforcement agency.

and, of course, lastly... the provisions of the ADA would have to be found to apply to your HOA directly. SOme provisions through the FHA might apply, but in general, the ADA 'card' is a great bluff card tossed out frequently, but erroneously, against HOAs. One thing to remember, if this guy files suit against the HOA, he will provide enough evidence in his initial filing to give your side something to research, or get a lawyer to research, and you can always decide THEN to comply. let him bluster.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Rebecca,

I concur with the others here that said it's a dispute between neighbors and not necessarily the Associations issue. Would the neighbor still be complaining if it was a grill vs. fire pit?

I can understand the persons issue. However, the simple remedy would be to close the windows. Leaving the windows open one would have to question if the asthma is aggravated solely due to the pit or perhaps the pollen, lawnmower exhaust, grills, etc.

The Association could make a decision to amend the rules to prohibit fire pits but someone else might say that a grill is a pit the contains fire so they should be allowed (I know long reach but need to make my point). The Association can't please everyone. Has others owners complained of the pit? My HOA requires complaints from more than one owner before they become involved in "activities that were noxious or annoying". This is because noxious and annoying are relative to the persons point of view. Does your Association have a similar policy?

Do you know if the individual approached the neighbor about it?

Options (as I see it):

1. Respond to the person that the board does not see this as an Association issue due to only receiving complaints from one member and that no rule/covenant is being broken.

2. Respond to both parties requesting that they work it out between themselves.

3. Seek legal advise.

4. Amend the rules to prohibit fire pits.

Tim

BarbaraD6 (Florida)
Posts: 347

Posted:

Anna and Rebecca,

I as a board member had a resident move in next to me and started a to burn paper and wood in a fire pit.(she had the small metal one on her back porch) I couldn't breath and ran for my inhaler. When I saw the person I was going to talk to her about it, but 9 am the next morning she did it again and I had to run to the doctor for a breathing treatment. I informed the resident and the rest of the board and they said if she did it again we would send her a violation letter stating she was doing an activity that caused health concerns. I am fine if someone is cooking on a grill but when they burn paper and wood I have a problem breathing. I had my windows closed but the smoke can easily enter my unit, they are not air tight.

Barbara

MicheleD (Kentucky)
Posts: 4,491

Posted:

Tim, many HOAs don't use the "one person" restriction for something to qualify under the noxious or nuisance clause for a reason similar to Barbara's condition above.

In our HOA, the noxious activity may only affect one household, simply due to geography, but that does not mean the activity is not noxious simply because another person doesn't (or can't) complain.

But I do understand sometimes you have to have boundaries.

I just don't know that I would tell the person "Sorry, you're the only one to complain."

To me it would give the impression that the board is somewhat impotent.

Then again, my HOA is not a condo/townhome/patio home type.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Michele,

Actually, until I read Barbara's e-mail on how their Association handled it, I felt that it would be best for the Association to choose to stay out of it. I would still encourage the neighbors to talk prior to the Association becoming involved.

However, if they must become involved, a similar letter like Barbara suggest could be used. The Board should also call both parties to a meeting (together or separate) to discuss the issue before making a ruling.

Tim

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Michele,
Maybe logic would dictate that whoever is causing the problems is responsible for fixing the problem. Doesn't matter is if is common property or private property or activites inside a dwelling.

As far as the firepit is concerned and the fire restrictions are met you can use the firepit, but you can't infringe on anyone else's privacy to conduct the activity. There is probably no restriction to having home movies in the backyard, just don't distrub your neighbor. If it infringes on the ADA Act, you are in for a fight that probably will be cause to remove all the fire pits. The ADA people are not out there suing everyone for any incidental thing they are notified about that violates the ADA act. Before the ADA decides to get involved they will know what to pursue and what to not touch. So as the individual may elect to complain to the ADA, the door is open for the Board/management or the indivdual creating the issue, to walk in or call the ADA and receive some direction. You may even get a yes or no answer. Of course, we all well know, you can sue anyone about anything.

What do you think Glen?

RebeccaA2 (Virginia)
Posts: 4

Posted:

After hearing from Barbara, I feel badly that we didn't take some kind of action a year ago for our resident with asthma.
He mentioned he needed to use his inhaler due to smoke from next door and also that smoke seeped into his house
even with the doors and windows closed. I recommend that all HOAs start developing some rules covering these smoke-
producing devices, taking into consideration not only the fire code restrictions and recommendations but also incorporating
language dealing with the size of the lot and smoke pollution to neighbors. I just ran across an article on outdoor wood-burning
pizza ovens which are now available for homeowners to use in their backyards. They require four hours of burning just to get to
the necessary temperature to start cooking. This may be fine on a property of .5 acres and larger but not on the tiny lots in many
HOA communities. Thanks for all your input.

RebeccaA2 (Virginia)
Posts: 4

Posted:

MicheleD (Kentucky)
Posts: 4,491

Posted:

Quote:

Posted By RebeccaA2 on 04/25/2010 3:46 PM
I recommend that all HOAs start developing some rules covering these smoke-producing devices, taking into consideration not only the fire code restrictions and recommendations but also incorporating
language dealing with the size of the lot and smoke pollution to neighbors. I just ran across an article on outdoor wood-burning pizza ovens which are now available for homeowners to use in their backyards. They require four hours of burning just to get to the necessary temperature to start cooking. This may be fine on a property of .5 acres and larger but not on the tiny lots in many HOA communities. Thanks for all your input.

I would like to give you a word of caution, however, Rebecca.

It would be unwise to suggest that HOAs make rules for things over which their covenants do not already have some sort of control.

If your documents allow for some sort of control over firepits or smoke producing items, then go for it. But if there is none, then you would need to make an amendment that would require a much greater threshold of approval (from a requisite majority of your members per your documents versus the board of directors through Rules & Regs), than simply making rules.

Just want to point that out.

TrudyH1 (Michigan)
Posts: 1

Posted:

I'm late to this discussion, but as someone with asthma, I would like to note that closing windows has no effect. The particles from smoke are so small that they can get through minute openings and even the most advanced air purifier cannot filter them out. My pulmonologist told me that, and it certainly seems to be true, as running my air purifier has no effect on the smell of smoke in my house from a neighbor's firepit nor on my need to use an inhaler.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Trudy,

Welcome to the forum.

Good info. However, as you pointed out, this is a very old thread (over 5 years).

It's best not to reactivate old threads as what may have been good advice in 2010 may be bad advice in 2016, as laws change.

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