Options for Condo Owners Suffering from Drifting ...tobaccofreeca.com/.../11/A-Condo-Owners-Factsheet_HOA-Smoke-Fre… · do not solve the problem, the HOA can seek a court order
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Option #2 Use the nuisance provision in the CC&Rs Nearly all CC&Rs3 contain a provision saying that certain conditions or activities will be considered a “nuisance” and not permitted by the homeowners’ association (HOA.) Some CC&Rs’ nuisance provisions list specific examples, such as loud noise at certain hours or foul odors, while others merely make a general statement that any activity or thing affecting residents’ health or welfare will not be permitted.
If secondhand smoke is drifting into your unit and your neighbor won’t agree to work out an informal solution, you may ask the HOA to enforce the nuisance provision against the neighbor. You should submit your
If you own a condo1 and a neighbor’s secondhand smoke is entering your unit, you may be concerned about the implications for your health. Breathing secondhand smoke can be dangerous,2 and when it enters your home, it becomes difficult to escape.
This fact sheet outlines six options for condo owners who want to avoid unwanted exposure to secondhand smoke at home. It focuses on options for those whose complex is not quite ready to restrict smoking on the property. If you are renting a condo, there are options available to your unit’s owner, along with some steps you can take. If you rent an apartment, see our other fact sheets on smokefree rental housing at www.changelabsolutions.org/tobacco-control.
Option #1 Work out a solution with your neighborBefore you take any other action, it is often best to try and reach an agreement with your smoking neighbor. The neighbor could agree to limit where s/he smokes, for example, or the times when s/he smokes. This type of agreement is not legally binding but may solve the problem.
While you could work out an agreement informally on your own, there are mediation and dispute resolution programs that can be helpful for disputes like this. Nolo (www.nolo.com) has free information on mediation that explains what it is and how it works (select “Search Entire Site” from the drop-down menu and search for the term “Mediation FAQ”). We have a listing of alternative dispute resolution services categorized by county, available at www.changelabsolutions.org/tobacco-control.
Options for Condo Owners Suffering from Drifting Secondhand SmokeJune 2009
The most effective way to eliminate secondhand smoke in your condo complex is to prohibit smoking on the premises. If you’d like to work with your homeowners’ association (HOA) to limit smoking, please see our fact sheet “How to Make a Condo Complex Smokefree,” available at www.changelabsolutions.org/tobacco-control.
If your neighbor ignores the board’s initial warning, it may require the smoking owner to appear at a board hearing and impose a fine or suspend privileges for each nuisance violation. If the fines do not solve the problem, the HOA can seek a court order to stop the owner from creating a nuisance.8
Option #3 Sue the HOAThe HOA may not agree that the amount of secondhand smoke in your apartment violates the nuisance provision and decline to get involved, or it may make only a token effort to enforce the nuisance provision. If you believe your HOA has failed to fulfill its duty to enforce any part of the CC&Rs, including the nuisance provision, you can take the HOA to court to compel it to do so.9 A condo owner in Massachusetts recently filed suit against her HOA after she formally requested that they act because drifting secondhand smoke was causing a “hazardous condition” in her unit, and the HOA did nothing to stop it.10 The HOA asked the court to dismiss the suit, but the court refused.11
Option #4 Sue the neighborIf going to the board doesn’t solve the prob-lem, another option is to bring a lawsuit against the neighbor who allows the second-hand smoke to drift into your unit. (Even if the smoker is a guest or ten-ant, the lawsuit must be brought against the condo owner, because, in a condo, owners are responsible for ensuring that guests and tenants follow all HOA rules and restrictions.) You should only consider a lawsuit against your neighbor after you have exhausted all other options.12
request in writing and keep a copy for yourself. Because the drifting smoke may violate the nuisance provision of the CC&Rs, the condo board of directors (“board”)4 has a duty to investigate the complaint and make a good faith determination of whether or not the secondhand smoke constitutes a nuisance.5 To be deemed a nuisance, the secondhand smoke must cause an unreasonable disturbance to your use of your property.
When making your request to the HOA, you must follow the procedures set out by your complex’s governing documents.6 If the board members agree with you that the drifting secondhand smoke is substantial enough to constitute a nuisance, they must take appropriate action to stop the nuisance. A simple phone call or warning letter from the board may cure the problem.
It is important to note that the person making the complaint cannot dictate how to resolve the nuisance; the smoking neighbor, in conjunction with the HOA, will make that decision. The HOA doesn’t have the power to order anyone to quit smoking altogether. But it might, for instance, be able to limit smoking to outdoors and away from the building or only indoors at certain times of day when the neighbors are not home; or it could require the unit be altered by sealing the air gaps or installing a HEPA filter.7
Filing a lawsuit should be your last resort. Lawsuits are time consuming, expensive, and contentious, and the outcome is always uncertain.18
In addition, some CC&Rs contain an “attorneys’ fees provision.” If a homeowner sues the HOA and loses—whether in superior court or small claims court—this provision would allow the HOA to charge that homeowner for the costs the HOA incurred defending itself against the lawsuit. Before suing you should consult an attorney to learn whether your CC&Rs contain such a provision.
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If you decide to proceed with a lawsuit against your neighbor, you might base it on one or more of the following grounds, depending on your situation:
Violating the CC&RsAll owners agree to abide by the restrictions contained in the CC&Rs when they purchase a condo. In essence, because CC&Rs include a clause that owners will not create a nuisance, your lawsuit would claim the neighbor broke this contract by permitting secondhand smoke to enter your unit.13
NuisanceSome California cities have a law expressly stating that drifting secondhand smoke constitutes a nuisance.14 If there is no such law in your city, you must rely on state law, which does not identify secondhand smoke as a nuisance.15 To win in court under California law, you would have to show that the secondhand smoke drifting into your apartment amounts to a “substantial” and “unreasonable” interference with the use and enjoyment of your property.16
Other possible causes of action in a lawsuit against your neighbor include trespass, negligence, harassment, battery, or intentional infliction of emotional distress. Each of these legal claims is explained in the glossary of the publication “Legal Options for Tenants Suffering from Secondhand Smoke,” available at www.changelabsolutions.org/tobacco-control/products/legal-options-tenants.17
If you decide to sue your neighbor, you’ll need to decide whether to go to regular court or small claims court—a decision that depends on what you want to get out of your lawsuit and whether you can hire an attorney. There are pros and cons to using each court.
Small claims courtIn small claims court, neither side is allowed to have attorneys, so you would represent yourself, which would save you money. Although small claims court can’t directly order anyone to stop smoking inside the unit, it does have an option called a “conditional judgment,” which allows a losing defendant to choose between paying a fine or taking an action. For example, you could ask the judge to issue an order that says the smoker either has to pay you a certain amount of money or stop smoking in the unit. If the smoker chooses to pay the money, however, small claims court is unable to prevent him or her from continuing to smoke in the unit.
Small claims court does have the power to order the neighbor to reimburse you for any money you’ve spent or lost due to the smoking, known as damages—for instance, out-of-pocket expenses for items such as air filters or medical costs, or lost income if you missed work because the smoke made you sick. (In small claims court, the maximum amount of a claim is $7,500.)
To learn more about bringing a suit in small claims court, a booklet from the California Department of Consumer Affairs is a great resource (www.dca.ca.gov/publications/small_claims), as well as the information at the California Courts website (www.courtinfo.ca.gov/selfhelp/smallclaims).
Superior CourtIf you file your case in Superior Court, you may ask the court to issue an injunction—an order to stop doing something, in this case smoking—and you also can seek money damages if you wish. If you decide to go this route, you’ll probably need to hire a lawyer, which can become expensive. The California Legal & Dispute Resolution Services for Tenants & Smokers Injured by Tobacco (available at www.changelabsolutions.org/tobacco-control) includes a listing of lawyer referral services in each county.
Option #5 Make a “reasonable accommodation” requestCalifornia and federal disability laws have a process for requesting a “reasonable accommodation” to ensure that people with disabilities have an equal opportunity to access and enjoy their homes.19 To qualify for protection under these laws, you must have a medical condition that meets the legal definition of a disability—a mental or physical condition that “limits” (under California law20) or “substantially limits” (under federal law21) a major life activity such as breathing, walking, or performing manual tasks. Courts have generally recognized that individuals are disabled when they have severe asthma, allergies, chemical sensitivities, or other respiratory conditions that limit their ability to breathe.22 Whether you are legally considered disabled will depend on the particular facts of your situation.
Under federal and state disability laws, HOAs must modify their rules, practices, or services when
necessary to allow a person with a disability equal use and enjoyment of his or her premises.23 The HOA also must permit a disabled person to make reasonable modifications to a unit—installing exhaust fans or air filters, for instance—if needed to fully use and enjoy the premises. Such modifications would be at the owner’s expense; the HOA is not obligated to pay for them.24
Whether a modification to a policy or unit is “reasonable” depends on the specific facts of your situation. For a resident with a disability affected by secondhand smoke, a
reasonable accommodation might be requesting that the HOA amend the CC&Rs or Rules25 to declare the common areas nonsmoking or to prohibit smoking in all units. (For more on how to accomplish this, see “How to Make a Condo Complex Smokefree,” a fact sheet available at www.changelabsolutions.org/tobacco-control.)
To make a reasonable accommodation request, send a letter to the HOA explaining that you have a disability worsened by secondhand smoke and stating the specific accommodation you would like the HOA to make. You should also include a doctor’s note documenting the limitations caused by your disability and a written record of when you have experienced the drifting smoke. If you are renting a condo, you may send this letter to the owner of the condo or to the HOA.
If your request for a reasonable accommodation is rejected by the HOA (or by the unit’s owner, if you rent), you have one year to file a complaint with the California Department of Fair Employment and Housing or the U.S. Department of Housing and Urban Development. You have two years to file a lawsuit after the accommodation request has been denied.
Option #6 Work to pass a local law If you are unable to alleviate the problem using any of these options, you may want to work with your city or county to help pass a local law (also called an ordinance) banning smoking in common areas or units of multi-unit housing, including condominiums. Belmont, California, passed the first ordinance of this kind in 2007, and many other cities have since followed its example with their own smokefree housing laws.26 A city or county also can pass an ordinance declaring that unwanted secondhand smoke will be considered a nuisance, allowing individuals to act to abate the nuisance. Several cities in California have done just that.27 If you are interested in pursuing this option, contact us to find out who in your area is working on this issue.
No matter which option you choose, it is important to consider your health. Breathing secondhand smoke that is drifting into your unit is not only annoying, it can cause serious health consequences. You can protect yourself and your family by taking action to prevent secondhand smoke from entering your home.
ChangeLab Solutions formerly existed under the name Public Health Law & Policy (PHLP). Any references to PHLP in this publication should now be understood to refer to ChangeLab Solutions. ChangeLab Solutions is a non-profit organization that provides legal information on matters relating to public health. The legal information provided in this document does not con-stitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.
A nonprofit organization known as a fair housing council may be able to help you make a reason-able accommodation request or may refer you to a local attorney for assistance. Our fact sheet “How Disability Laws Can Help Tenants Suffering from Drifting Tobacco Smoke,” avail-able at www.changelab-solutions.org/tobacco-control, includes a list of fair housing councils in California.
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13 If your condo’s CC&Rs expressly state that secondhand smoke drifting into another unit automatically constitutes a nuisance, then you won’t have to present evidence to prove that the secondhand smoke enter-ing your unit is substantial enough to constitute a nuisance. For infor-mation about how to change your CC&Rs to add secondhand smoke to the nuisance provision, see the TALC publication “How to Make a Condo Complex Smokefree.” Available at: www.phlpnet.org.
14 Those cities include Novato (Novato Municipal Code 7-3.11), Calabasas (Calabasas Municipal Code 8.12.070), Emeryville (Emeryville Municipal Code 5-29.14), Dublin (Dublin Municipal Code 5.56.160), Loma Linda (Loma Linda Municipal Code 8.10.035) and Belmont (Belmont Municipal Code 20.5-2).
15 California law more generally defines “nuisance” as “[a]nything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of the property, so as to interfere with the comfortable enjoyment of life or property.” Cal. Civ. Code § 3479. A California court held that a neighbor’s secondhand smoke can con-stitute a nuisance if it is a “substantial and unreasonable” invasion “comparable to the reeking manure piles” left unattended by a dairy (the subject of another case). Babbitt v. Superior Court, WL 1068817, at *3 (Cal. App. 4th Dist. 2004). A recent California court case determined that even outdoor secondhand smoke can constitute a nuisance. Birke v. Oakwood Worldwide, 169 Cal. App. 4th 1540 (2009).
16 This is a fairly high threshold to meet and may even require that you present evidence showing what the state of scientific research is regarding amounts of SHS that are “unreasonable” and/or air sample data demonstrating how much secondhand smoke is in the air in your apartment, which is not always easy to obtain.
17 While it may be helpful to know a little about the legal claims you might make, you do not need to learn the names or specific details. If you take your case to trial court, your lawyer will evaluate which claims are best suited to your situation. If you choose to bring a case in small claims court—where lawyers are not allowed—you will not be expected to know the legal specifics of these claims.
18 Before filing a suit, you may need to participate in a process to resolve the dispute without going to court. Cal. Civ. Code § 1369.520.
19 See Fair Housing Act (FHA), 42 U.S.C. § 3601 et seq.; California Fair Employment and Housing Act (FEHA), Cal. Gov’t Code § 12900 et seq. See also Unruh Civil Rights Act, Cal. Civil Code § 54.1(b)(1–2).
20 Cal. Gov’t Code § 12926(k).21 42 U.S.C. § 3602(h). 22 See County of Fresno v. Fair Employment & Hous. Comm’n, 226 Cal. App.
3d 1541, 1550 (1991) (“To most people tobacco smoke is merely irritat ing, distasteful or discomforting. Someone who suffers from a respira tory disorder and whose ability to breathe is severely limited by tobac co smoke is, nevertheless, physically handicapped within the meaning of the [Fair Employment and Housing] Act.”). See also Vickers v. Veterans Admin., 549 F. Supp. 85, 86-87 (W.D. Wash. 1982) where the court found the employee to be a “handicapped person” because the employee was unusually sensitive to tobacco smoke. Note: the legal definition of “handicapped” is equivalent to the legal definition of “disabled.” See Bragdon v. Abbot, 524 U.S. 624, 631 (1998). Holdings in employment discrimination cases may be used as guidance in hous-ing cases. Pfaff v. U.S. Dep’t of Hous. and Urban Dev., 88 F.3d 739, 745 n.1. (9th Cir. 1996).
23 California law provides residents with disabilities the same protections as federal law, though California’s protections cover more people. See Fair Housing Act (42 U.S.C. § 3601 et seq.), Fair Employment and Housing Act (Cal. Gov’t Code §12900 et seq.) and the Unruh Civil Rights Act (Cal. Civ. Code § 51 et seq.).
24 42 U.S.C. § 3604(f)(3)(A).25 Rules contain additional restrictions on the use of property and typi-
cally expand upon areas not fully defined in the CC&Rs—for example, whether private barbecue grills are permitted on balconies or what types of vehicles may park in the parking lot.
26 Belmont Municipal Code 20.5-3. The Center for Tobacco Policy and Organizing maintains a list of all cities with such ordinances, available at: www.center4tobaccopolicy.org/localpolicies-smokefreehousing.
27 See footnote 14 for a list of those cities.
1 A condominium or condo is housing that is subject to a Declaration of Covenants, Conditions, and Restrictions (CC&Rs) and managed by a homeowners’ association (HOA). In addition to traditional condomin-ium complexes, the use of the word “condo” in this document may also include co-ops, subdivisions, common interest developments, and planned unit developments.
2 Secondhand smoke is responsible for as many as 73,000 deaths among nonsmokers each year in the United States. See US Department of Health and Human Services, Centers for Disease Control and Prevention. Fact Sheet – Secondhand Smoke. 2006. Available at: www.cdc.gov/tobacco/data_statistics/fact_sheets/secondhand_smoke/secondhandsmoke.htm. Both the U.S. Surgeon General and the California Air Resources Board have concluded that there is no safe level of exposure to secondhand smoke. See US Department of Health and Human Services, Office of the Surgeon General. The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General. 2007. Available at: www.sur-geongeneral.gov/library/secondhandsmoke/factsheets/factsheet7.html; see also Resolution 06-01, Cal. Air Resources Bd. (2006) at 5. Available at: www.arb.ca.gov/regact/ets2006/etsfro.pdf. Secondhand smoke contains thousands of chemicals, at least 250 of which are known to be toxic or carcinogenic, including ammonia, formaldehyde, and sulfur dioxide. See National Toxicology Program, US Department of Health & Human Services. 11th Report on Carcinogens, Substance Profiles – Tobacco Related Exposures 1. 2005, p. 1-2. Available at: http://ntp.niehs.nih.gov/ntp/roc/eleventh/profiles/s176toba.pdf .
3 “CC&Rs” stands for Declaration of Covenants, Conditions, and Restrictions and describes restrictions on the use of property in the complex—for example, the number or ages of people permitted to live in a unit. Because the CC&Rs are legally binding restrictions that automatically apply to the buyer, they must be disclosed at the time of sale and officially recorded, like a deed. Cal. Civ. Code § 1353(a) (West 2008).
4 The board consists of homeowners in the condo complex elected by the HOA to enforce or enact regulations controlling the use of prop-erty within the complex.
5 A good faith determination usually involves the board investigating the complaint, taking into account the circumstances surrounding the complaint, and making a reasonable determination without being in collusion with any of the parties. If the HOA investigates and decides not to discipline or refuses to sue the owner of the unit the smoke is coming from, the HOA must “reasonably believe its refusal to com-mence the action is good business judgment in the best interest of the corporation.” Beehan v. Lido Isle Community Assn., 70 Cal. App. 3d 858, 865 (1977).
6 Governing Documents apply to all of the owners in the condominium complex and may include the CC&Rs, Rules, Bylaws, Condominium Plan, or Articles of Incorporation.
7 Altering the unit is the least desirable approach because, although it may help reduce some of the drifting smoke, it rarely eliminates it entirely. If the amount of secondhand smoke is substantially reduced, even if some smoke is still drifting into your unit, the board may feel that the nuisance has been abated, and the HOA may be unwilling to force the neighbor to take additional measures beyond what was already done.
8 Although the HOA has the option to go to court to enforce the nui-sance provision against an owner, it is relatively unlikely that they would exercise it. This is because initiating a lawsuit is very expensive for the entire HOA, and it would only benefit those owners who are experiencing the secondhand smoke in their units.
9 Posey v. Leavitt, 229 Cal. App. 3d 1236, 1246-47 (4th Dist. 1991). You may also be entitled to monetary damages. Id.
10 Burrage v. Betty Gibson Associates, Inc., et al., No. SUCV2007-04578-E, (Suffolk, MA. 2007).
11 Memorandum and Order on the Defendant Gilchrist’s and Defendants Trust’s and Trustee’s Motions To Dismiss, Burrage v. Betty Gibson Associates, Inc., et al., No. SUCV2007-04578-E (Suffolk, MA. 2008).
12 In a lawsuit regarding drifting tobacco smoke in a condo, the result is especially unpredictable because there have been very few prior cases for you to rely upon.
Although California laws protect people from secondhand smoke at work and in restaurants, shops, and other places, many residents still find themselves exposed to unwanted secondhand smoke in their homes—especially if they live in multi-unit buildings. In condos, where each unit is owned separately, addressing this problem can be especially challenging.1 This fact sheet answers common questions about how condo owners can make their entire complex, including individual units, smokefree.
Why make a condo complex smokefree?
In addition to the health-related harm drifting tobacco smoke can cause,2 it can increase condo maintenance costs (for sealing and repainting walls and cabinets, replacing carpets, and cleaning the ventilation system) and decrease a unit’s resale value.3 Trying to block smoke from drifting between units by using air filters, installing an exhaust fan, or sealing crevices is usually ineffective.4 Prohibiting smoking altogether is the only sure way to avoid unwanted exposure to this toxic substance.5
Who can create a smokefree policy?
Most people assume that when they buy a home, they will be the ones making decisions about their property. If you live in a condo, however, much of the decision-making power lies with the homeowners’ association (HOA).6 The HOA, either through its elected board of directors (“the board”) or by a vote of the full member-ship, has the power to enforce or enact regulations controlling the use of property within the complex.
Owning a unit automatically means you are a member of the HOA, and any member of the HOA can begin the process of making a complex smokefree. Many board members are unaware that condos may legally prohibit smoking in part or all of the complex, so it is often up to the HOA members to educate the board. This fact sheet can help.
What areas can be designated smokefree?
Smoking can be restricted on the entire property or only in certain areas.
Indoor common areas: Lobbies, elevators, stairwells, laundry facilities, mail-rooms, and other indoor common areas can be designated smokefree by the HOA. Smoking is already prohibited in such areas in many condo complexes, through HOA restrictions or state or local law.7
This fact sheet focuses on options for condo owners. If you are renting (either a condo or an apartment unit), see TALC’s other fact sheets on smokefree housing available at www.talc.phi.org.
Outdoor common areas: Courtyards, pools, playgrounds, sandboxes, gardens, pathways, parking areas, and other common areas can also be designated smokefree.8 In addition to protecting residents from exposure to unwanted smoke, a smokefree outdoor policy can reduce litter from cigarette butts on condo property and keep children from putting discarded butts in their mouths. Designated smoking areas in the outdoor common space are recommended so that people who smoke can do so away from shared recreational areas.
Individual units: HOAs may even restrict smoking in individual units, which would prohibit all current and future owners, renters, and guests from smoking there. A smoking restriction could include the “exclusive-use” common areas such as balconies and patios.
How can a condo complex be made smokefree?
In addition to state laws that regulate all condominiums, each complex has its own governing documents. These include the Declaration of Covenants, Conditions, and Restrictions (CC&Rs)9 and the Rules.10
CC&Rs describe restrictions on the use of property in the complex—for example, the number or ages of people permitted to live in a unit. Because the CC&Rs are legally binding restrictions that automatically apply to the buyer, they must be disclosed at the time of sale and officially recorded, like a deed.11 Members of the HOA must vote to approve any changes to the CC&Rs.
Rules contain additional restrictions on the use of property and typically expand upon areas not fully defined in the CC&Rs—for example, whether private barbecue grills are permitted on balconies or what types of vehicles may park in the parking lot. Changes to the Rules only require a vote by the board. Because Rules are easier to pass than CC&Rs, Rules may change relatively frequently.
There are three ways to address smoking in a condo complex using these governing documents:
1. Have the HOA members (the condo owners) vote to amend the CC&Rs to restrict smoking in common areas and/or units.
2. Have the HOA members vote to amend the CC&Rs’ nuisance provision to include drifting secondhand smoke. (A condo owner can already apply the nuisance provision to unwanted secondhand smoke, but unless the provision expressly states that secondhand smoke is a nuisance, it can be difficult to prove that the amount of drifting smoke is severe enough to be considered a violation of the nuisance provision.)
3. Have the board of the HOA adopt a new Rule restricting smoking in common areas and/or units.
People do not have a “right” to smoke—especially in multi-unit housing, where others can be affected. See “There Is No Constitutional Right to Smoke,” another fact sheet from TALC available at www.talc.phi.org.
Amend CC&Rs to prohibit smoking in units or common areas
Amend nuisance provision of CC&Rs to state that secondhand smoke is a nuisance
Adopt a Rule prohibiting smoking in units or common areas
Voting Requires vote of condo owners, using formal voting procedures.
Requires vote of condo owners, using formal voting procedures.
Voted on only by the board, not all HOA members.
Drafting The new provision should be written by a lawyer.
The new provision should be written by a lawyer but isn’t overly complicated.
Doesn’t need to be written by a lawyer.
Expense Can be expensive due to lawyer fees for drafting and cost to HOA for printing and distributing ballots.
Can be expensive, due to cost of printing and distributing ballots, though lawyer fees should be less than amending the CC&Rs to prohibit smoking because drafting is less complicated.
Very inexpensive because it doesn’t incur lawyer fees or ballot costs.
Enforcement The board has a duty to enforce CC&Rs by fining, restricting the rights of, or suing the noncompliant owner. Individual owners can also enforce CC&Rs by suing the noncompliant owner (and possibly by suing the board if it failed to act to enforce the provision).
The board has a duty to enforce CC&Rs by fining, restricting the rights of, or suing the noncompliant owner. Individual owners can also enforce CC&Rs by suing the noncompliant owner (and possibly by suing the board if it failed to act to enforce the provision).
Only the board can enforce a Rule, usually by fining the noncompliant owner.
Important considerations
Requires votes from enough owners to get passed. Because the owners vote to change the CC&Rs, their participation in the decision may make them more likely to comply with the new no-smoking policy. If there is a violation, CC&Rs may be enforced in more ways than a Rule.
Adding smoking to the nuisance provision would not eliminate smoking in the condo—it would just allow homeowners to more easily use the nuisance provision if secondhand smoke were entering their units. This approach may be useful if a ban on smoking in units isn’t feasible.
Because a Rule is only voted on by the board, this approach may work best for making the common areas nonsmoking—a less controversial restriction than smokefree units (although there is nothing preventing a Rule from prohibiting smoking in all parts of the complex). Adopting a smokefree Rule may work better for complexes where the board actively enforces Rules.
Comparing Three Ways to Make a Condo Complex Smokefree
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How do these three approaches differ?
Amending the CC&Rs is stronger and more enforceable than adopting a new Rule, but it’s also potentially more expensive and time consuming. What follows are three areas to consider when weighing the options.
Voting Procedures: With any change to the CC&Rs, HOA members will have to vote using a fairly compli-cated balloting procedure that must be followed precisely to ensure that the vote is valid.12 A new Rule, on the other hand, only needs to be voted on by the board rather than all of the HOA members, so it can be done relatively quickly—but it can also be overturned just as quickly by the same or a subsequent board.
Expense: Because the CC&Rs are a legally binding document, a new amendment should be drafted by a lawyer. This can be expensive, but it is important to ensure that the amendment is legally appropriate and enforceable.13 (Drafting attorneys may find it helpful to review a sample at www.smokefreeapartments.org/condos.html.) Amending the CC&Rs means the HOA must buy and print the ballots and envelopes required for the voting procedure; making a Rule change doesn’t involve these costs. You also don’t need to hire a lawyer to draft a new Rule, though it is encouraged. If you draft the Rule without a lawyer, make sure it clearly states what activity is prohibited, which portions of the condo complex are affected, and the penalty for failing to comply with the Rule.
Enforcement: Either the board or an individual owner can act to enforce the CC&Rs, whether it’s a new policy prohibiting smoking or an amendment to the nuisance clause.14 Ordinarily, the board enforces the CC&Rs because it has a legal duty to do so,15 either by assessing a fine or suspending the unit owner’s right to use recreational facilities in the condo. If the board fails or refuses to enforce the CC&Rs, an owner may sue the owner violating the CC&R and, in some cases, sue the HOA, if it did not act to enforce the CC&R.16 (Before bringing suit, the owner may need to first participate in a process to resolve the dispute without going to court.17)
When it comes to enforcing Rules, however, only the board of the HOA can take action—an owner cannot sue another owner for failing to comply.18 The board could fine the person who is not following the Rule. Even though individual condo owners cannot enforce the Rules against each other, if the board fails to enforce the Rules, owners can work to recall the board and elect new directors who will enforce them.
How should I decide which approach to take?
A first step could be to find out how the other condo owners in your complex feel about a no-smoking policy. You may want to distribute a survey, especially if you live in a large complex.19 Then you can assess whether and where owners are willing to restrict smoking.
If you want to restrict smoking inside units, a CC&R amendment is probably better suited than a new Rule, because there are more ways to enforce CC&Rs. Board members also may be reluctant to adopt a Rule that restricts smoking in units because they don’t want to upset residents who smoke, so they may be more comfortable putting the decision in the hands of the HOA membership by calling for a vote on whether to amend the CC&Rs instead.
Limiting smoking in common areas will probably be much less controversial than restricting smoking in units, so using the more informal and less costly approach of creating a new Rule might be a more appropriate route.
Another factor that will help you decide between a new Rule and a CC&R change is whether the board
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tends to enforce the Rules your complex already has. Because owners cannot enforce Rules, passing a new one is not likely to solve a drifting smoke problem if your board is lax about enforcing Rules to begin with. Also, consider that if the new restriction is ever challenged in court, CC&Rs are more likely than Rules to be upheld by a judge.20
If you are concerned that the condo owners or the board won’t vote for a change prohibiting smoking in units because they are hesitant to “tell others what to do,” it may be easier to add secondhand smoke to the nuisance provision of the CC&Rs.21 However, amending the nuisance clause will not create much (if any) immediate change unless the board or an owner takes action to enforce it, so it should be pursued only if the HOA members seem unwilling to vote for the stronger measure of prohibiting smoking in units.
Changing your condo’s policies can be a slow and political process. Getting the votes you need to support a change takes diplomacy and patience: it often can take months from the time you first raise your concerns until the day the votes are counted. For ideas about how to gather support for a new smoking policy, see www.center4tobaccopolicy.org/organizing-introduction.
When should the smokefree provision go into effect?
While restrictions can generally be put into effect immediately,22 delaying implementation—especially for new restrictions on smoking inside units—will give residents time to adjust.23 A reasonable delay could be anywhere from 60 to 180 days from when the change is approved.
You can also include a “grandfather clause” exempting current residents from a new restriction: this exemption would apply only to current owners (or tenants, if a unit is rented), not to future owners or tenants. In general, grandfather clauses are not recommended. Residents who are already suffering from drifting secondhand smoke will not experience any relief, nor will they see other benefits of a smokefree complex such as a reduced fire hazard. Beyond that, new owners—who are not grandfathered in—can complain that they are subject to restrictions that others aren’t; if they sue over the smoking ban, a court may agree that enforcing the provision only against certain owners is unfair and decide that the restriction is not legal.24 Still, a grandfather clause may provide a compromise if there is significant opposition and allow a smokefree policy to get enough votes to pass.
If grandfathering seems necessary, it is a good idea to simultaneously alter the CC&Rs’ nuisance provision to include secondhand smoke. This way, residents who suffer from secondhand smoke drifting from grandfathered units may be able to more easily enforce the nuisance provision.
What if my complex won’t adopt a new Rule or change the CC&Rs?
You may be able to enforce the existing nuisance provision in your condo’s CC&Rs, even if it doesn’t specifically list smoking as a nuisance. If you have a disability that is made worse by secondhand smoke, you may be able to pursue a disability discrimination claim. You may also be able to bring a lawsuit against a neighbor whose smoke is causing you harm. For more information about each of these options, see “Legal Options for Condo Owners Suffering from Drifting Secondhand Smoke,” a fact sheet coming soon from TALC.
You can also encourage your elected officials to pass a local law against smoking in multi-unit housing. This way, apartments and condos throughout your city or county—not just your own building—could be made smokefree.25
The Technical Assistance Legal Center is a project of Public Health Law & Policy and the Public Health Institute. This material was made possible by funds received from the California Department of Public Health under contract #04-35336. This booklet provides general information only and is not offered or intended as legal advice. Readers should seek the advice of an attorney when confronted with legal issues, and attorneys should perform an independent evaluation of the issues raised.
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1 Although the term condominium or condo will be used in this docu-ment, the information in this fact sheet may also apply to co-ops, subdivisions, common interest developments (CID), planned unit developments (PUD), or other housing that is subject to a declara-tion of covenants and restrictions and managed by a homeowners’ association.
2 For more information about the negative health impacts of exposure to secondhand smoke, see US Department of Health and Human Services, Centers for Disease Control and Prevention. Fact Sheet – Secondhand Smoke. 2006. Available at: www.cdc.gov/tobacco/data_statistics/Factsheets/SecondhandSmoke.htm. See also US Department of Health and Human Services, Office of the Surgeon General. The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General—Executive Summary. 2006. Available at: www.surgeongeneral.gov/library/secondhandsmoke/report/executivesum-mary.pdf.
3 Lingering tobacco residue can make a home difficult to sell and drive down the selling price. Clean-up costs can range from $1,500 to $10,000 and do not guarantee that the smell or the harmful chemi-cals left behind from the smoke will be fully removed. Martin A. “On Tobacco Road, It’s a Tougher Sell.” New York Times, February 8, 2004.
4 “Exposures of nonsmokers to secondhand smoke cannot be con-trolled by air cleaning or mechanical air exchange.” US Department of Health and Human Services, Office of the Surgeon General. The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General. 2006, p. 649. Available at: www.surgeongeneral.gov/library/secondhandsmoke/report/chapter10.pdf. See also Center for Energy and Environment. Reduction of Environmental Tobacco Smoke Transfer in Minnesota Multifamily Buildings Using Air Sealing and Ventilation Treatments. 2004. Available at: www.mncee.org/pdf/research/summary.pdf.
5 The California Air Resource Control Board declared secondhand smoke a “toxic air contaminant” and concluded that there is no safe level of exposure. Resolution 06-01, Cal. Air Resources Bd. (2006) at 5. Available at: www.arb.ca.gov/regact/ets2006/res0601.pdf.
6 This fact sheet uses the term HOA to refer to all homeowners’ associa-tions, even though some complexes may use a different name.
7 If the indoor common area is a place where people such as security guards or maintenance staff work, the California smokefree workplace law prohibits smoking there. See Cal. Lab. Code § 6404.5 (West 2008). Some local governments have passed additional laws banning smok-ing in indoor common areas, eliminating the need for the condomin-ium association to regulate these areas. Many condo complexes also have restrictions against smoking in indoor common spaces already in their governing documents.
8 As with indoor common areas, many condos already have restrictions on smoking in outdoor common areas either in their governing docu-ments or under local law.
9 Some condominium associations may use a different term for this document, such as declaration or restrictive covenants, but this fact sheet will use the term CC&R to mean any of these documents.
10 Many condos also have Bylaws, a Condominium Plan, or Articles of Incorporation, but because those cannot be used to restrict smoking, they will not be discussed here.
11 Cal. Civ. Code § 1353(a) (West 2008).12 Although the precise voting procedures vary, all HOAs must distribute
secret ballots and two envelopes to each member 30 days before the deadline for voting. The ballot must be put into one envelope, which is put inside a second envelope. The voter is identified on the outside envelope only. These ballots and envelopes must be prepared by the HOA.
13 The chances are fairly small that another owner will sue to overturn your HOA’s new smoking prohibition. If that happens, it’s helpful to know that there has been at least one case in another state where a court upheld a new CC&R banning smoking in units. An owner who wished to continue smoking in the unit challenged the legality of a new CC&R restricting smoking inside the condos, but the court held that the new CC&R was valid. See Christiansen, et al., v. Heritage Hills #1 Condo. Ass’n, WL 4585750 (Colo. Dist. Ct. Nov. 7, 2006). Available at: http://davis-stirling.com/ds/pdf/smoking.pdf.
14 Cal. Civ. Code § 1354(a) (West 2008).15 Duffey v. Superior Court, 3 Cal. App. 4th 425, 431 (4th Dist. 1992) (noting
legal duty of HOAs to enforce CC&Rs); Cohen v. Kite Hill Cmty. Ass’n., 142 Cal. App. 3d 642, 650-51 (4th Dist. 1983) (noting that HOAs owe a fiduciary duty to their members).
16 Posey v. Leavitt, 229 Cal. App. 3d 1236, 1246-47 (4th Dist. 1991). However, Boards have some discretion when it comes to enforcement of the governing documents. Boards can weigh the cost of litigation, the gravity of the violation, and the likely outcome of the litigation, and make a good faith determination not to litigate a particular viola-tion. Beehan v. Lido Isle, 70 Cal. App. 3d 858, 866-67 (1977).
17 Cal. Civ. Code § 1369.520 (West 2008).18 The method of enforcement used by the board will be different for
each HOA and will be described in the governing documents.19 A sample survey can be found at www.smokefreeapartments.org/
CondominiumSurvey.doc.20 CC&Rs are presumed valid by courts, “unless the restriction is arbitrary,
imposes burdens on the use of lands it affects that substantially out-weigh the restriction’s benefits to the development’s residents, or vio-lates a fundamental public policy.” Nahrstedt v. Lakeside Village Condo. Ass’n., 8 Cal. 4th 361, 386 (1994) (italics in original).
21 Some CC&Rs’ nuisance provisions list specific examples of what would be considered a nuisance, such as loud noise at certain hours and foul odors, while others merely make a general statement that any activity or thing affecting residents’ health or welfare will not be permitted. If secondhand smoke is expressly defined as a nuisance in the CC&Rs, individuals affected by the smoke no longer have to prove that the impact of the drifting smoke constitutes a “substantial and unreason-able interference” with the use of the unit. This makes it much easier to enforce the nuisance provision.
22 Your HOA’s governing documents may require a brief notice period before changes go into effect.
23 A short delay in implementation of a new smoking restriction may also make the provision seem more reasonable to a judge, if the pro-vision is ever challenged in court by residents who disagree with the policy. As mentioned above, this scenario is unlikely but possible.
24 See Liebler v. Point Loma Tennis Club, 40 Cal. App. 4th 1600, 1610-11 (4th Dist. 1995) (holding that enforcement of CC&R restrictions must be “uniformly applied” and not place a burden on the individual owner that is “disproportionate to the benefit to the whole”).
25 See Public Health Law & Policy, Technical Assistance Legal Center. Sample California Ordinance Regulating Smoking in Multi-Unit Residences (with Annotations). 2005. Available at: http://talc.phlpnet.org/pdf_files/0072.pdf.
changelabsolutions.org/tobaccoquestions
Revised June 2015
(Originally issued April 2005)
Developed by ChangeLab Solutions
This material was made possible by funds received from Grant Number 14-
10214 with the California Department of Public Health, California Tobacco
SECTION I. FINDINGS. ......................................................................................................................... 6
SECTION II. ......................................................................................................................................... 10
Sec. [ ____ (*1) ]. DEFINITIONS. .................................................................................................. 10
Sec. [ ____ (*2) ]. SMOKING RESTRICTIONS IN NEW AND EXISTING UNITS OF