Court Upholds HOA Rule Against Smoking in Own Home

A Colorado judge has upheld a rule by a homeowners association preventing people from smoking in their own home.

A judge has upheld a homeowners association’s order barring a couple from smoking in the town house they own.

Colleen and Rodger Sauve, both smokers, filed a lawsuit in March after their condominium association amended its bylaws last December to prohibit smoking. “We argued that the HOA was not being reasonable in restricting smoking in our own unit, nowhere on the premises, not in the parking lot or on our patio,” Colleen Sauve said.

The Heritage Hills #1 Condominium Owners Association was responding to complaints from the Sauves’ neighbors who said cigarette smoke was seeping into their units, representing a nuisance to others in the building.

In a Nov. 7 ruling, Jefferson County District Judge Lily Oeffler ruled the association can keep the couple from smoking in their own home. Oeffler stated “smoke and/or smoke smell” is not contained to one area and that smoke smell “constitutes a nuisance.” She noted that under condo declarations, nuisances are not allowed.

While this would seem beyond the reasonable scope of power of an HOA, especially when imposed post hoc on those who bought their homes without any way of knowing this restriction would be put in place, my knowledge of the applicable real estate law is minimal. And I’d be mad, too, if I could smell my neighbor’s cigarette smoke in my own home.

The solution, however, is a head scratcher:

The couple now has to light up on the street in front of their condominium building. “I think it’s ridiculous. If there’s another blizzard, I’m going to be having to stand out on the street, smoking a cigarette,” said Colleen Suave.

So, the neighbors are afraid of smoke coming through the walls but are fine with it in the open? How does that make sense?

FILED UNDER: Law and the Courts,
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Brent Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. He's a widower and father of two young daughters. He earned his PhD from The University of Alabama. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Anderson says:

    So, the neighbors are afraid of smoke coming through the walls but are fine with it in the open? How does that make sense?

    Surely the smoke will dissipate in the atmosphere rather than seep discernibly into the condos.




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  2. James Joyner says:

    I guess it depends how far the street is from the condo. In my experience, nothing is more noxious than a sidewalk in front of a smoke-free building.




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  3. mark says:

    What is the law about smoking on a public street?

    If the HOA cannot restrict street smoking, then that might explain why it is allowed here.




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  4. Billy says:

    It’s been a few years since I had property, but it seems that this might void the restrictive covenants in the sale agreement under which the homeowners agreed to be bound by the decrees of the homeowners’ association. Even if not, there’s certainly a laches argument (if enough time had passed from the initial occurrance of the “nuisance” to the time in which the association chose to enforce it so that it constituted a detriment) or a constructive waiver argument if other homeowners are/have been allowed to smoke in their homes as well and the homeowners’ association had failed to act despite its knowledge of such aoccurrances in the past.

    Thing is, if it is a nuisance now, it was a nuisance when the homeowners purchased the house. If there was any indication that they might be allowed to smoke in the house when the sale was taking place, they may even have an action for fraud or rescission so that they can get their money back on the condo. In any case, seems like a load of crap from a gut standpoint, but I can certainly sympathize with not wanting your neighbors to smoke. However, there’s a simple solution: sell your house and move. Esepcially if the complainant moved in after the neighbor had already lived there – would you move in next to a pig farm and then complain about the smell? Or even if you did, would you then seek to shut it down becuase it bothers you?




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  5. ed says:

    Tobacco has been in common use for 500 years and complaints
    about the smell were uncommon, Indeed, I can remember when
    cologne that smelled like tobacco was sold.

    If this idiot judge is to allow the idiot complainers their way, God help us all.




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  6. davod says:

    I would be interested to know if any of the neighbors were members of the Condo board and if so when the became members. It has been my experience that when someone wants to get some change they get on the condo board. As soon as they get what they want, or are denied by the board, they resign.




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  7. Mike says:

    Bizarre conduct by HOA boards are becoming the rule rather than the exception.

    Board members are often untrained amateurs who posses no qualifications or credentials appropriate to the job. None are required.

    Yet the courts apply the “business judgement rule” to problems that arise. This gives great latitude to board members as they attempt to “run their business”.

    For many reasons, this is an outdated approach to condo and homeowners association governance.

    A landmark condo case was recently decided in NJ, where the court ruled that condos and HOAs were more like government “actors” rather than private businesses, and therefore subject to much more strict constitutional constraints.

    In the meantime, most states condos and HOAs resemble banana republics, and their governance’s are just as capricious and dangerous.




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  8. ken says:

    Townhouses are built with shared walls. Usually they have windows all opening on the same space, oft times a balcony as well, or a small enclosed green area.

    Smoke does not go through the walls, it enters through open windows.

    People who live in communities like this have the right to enjoy their homes without being bothered by others behavior.

    I suppose they also ban BBQ type smokers for the same reason.

    If someone were able to keep the smoke, along with all its irritants, within their own townhouse, then I don’t see any complaints arising. But even smokers like fresh air. We’ve all seen them, even in the cold of winter, smokers drive with windows open. So I am sure that even at home they ‘air’ out the place to make it more livable. The problem arises when this makes their neighbors place less livable.




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  9. Dave says:

    Heavy smoke can seep from one condo into another under the doors if there is a common, closed entrance hall. These types of setups do not usually have air-tight entry doors on each unit. The solution is for the smokers to buy and use a large heppa filter near their door so the problem subsides. They might even find they like their own environment better.




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  10. John Burgess says:

    That’s the kind of HOA behavior that causes people to pick up guns and start shooting. Or burning the entire place to the ground. Oh, I’m sure the HOA also has some ordinance forbidding guns, too….

    Rather than the cowardly nickel-and-dime approach, those who object so strenuously to tobacco smoke should be lobbying Congress to make it an illegal drug.




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  11. james says:

    If the smell of cigarette smoke can penetrate a solid wall, so can
    cooking and bathroom smells which are no better. The neighbors’ complaints are utterly frivolous and done purely for the sake of harrassment. That a judge would go along with such assholes is unconsionable. and surely grounds for appeal.




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  12. just me says:

    This is why I won’t buy homes in neighborhoods that have HOAs.

    I don’t know enough about the rules to know situations like this fit into the legalities. I would think an HOA could have a smoking ban in its bylaws, but not sure that it is wise or fair to homeowners to make this rule after people have already purchased their homes.

    But in general I am not really keen on the move to ban smoking all over the place.




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  13. Herb says:

    I guess that some will NEVER learn that 90% of the “no smoking: nonsense amounts to nothing more than Millions and Millions of dollars in a few Lawyers pockets.

    The lawyers have made a specialty in “No Smoking” issues and have “Convinced” some idiots that they are the “foremost Authority” on these smoking issues while the lawyers themselves have screwed the general public out of Billions of dollars. They are smiling all the way to the bank with every decision that “goes their way”

    Oh well, some just don’t have the intellect to know that Lawyers are at the very bottom end of the chain of humanity and would do or say anything for a buck




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  14. April says:

    Save your vitriolic comments toward “L”awyers for the minority who engage in the conduct you describe, rather than lumping all attorneys (especially those who expend significant amounts of time and “bucks” contributing to the public good) into one group.




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  15. geezer says:

    As a 30 year smoker, I’ll readily admit smoking sucks, and wish to hell the wife and I could quit together. Still, I can’t help thinking that repeated viewings of Denis Leary’s “No Cure For Cancer” DVD could eventually provide a bridge of peace, goodwill and understanding amongst the warring parties.




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  16. Herb says:

    In spite of some who think Lawyers are “Good and Pure”, I can only say that in all my many, many yaers of life, I NEVER heard of, nor have seen, an “Honest lawyer.

    To prove a point, Most politicans ane lawyers. That alone should send a message.




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  17. Herb says:

    April:

    Every time a lawyer does contribute bucks for the public good, it for the good of their own pocketbook. I guess that being a part of the public, lawyers “contribute” for themselves. OK?




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  18. Barry says:

    If the smell of cigarette smoke can penetrate a solid wall, so can
    cooking and bathroom smells which are no better.

    Exactly. What if your neighbor is on a high fiber diet? What if your neighbor cooks Indian food every night? Those are potent aromas too.

    And smoke cannot seep thru walls with the odor intact. As a former gas company employee, I can tell you that the artificial odorant in natural gas is often scrubbed out after seeping thru soil or porous building materials. I’d bet cigarette smoke would be similarly affected.

    Sounds like the couple in question have been targeted by anti-smoking zealots who twisted the HOA boardmembers’ arms and got their way. Not to mention the underhandedness of changing the HOA rules after a sale. Seems to me that would void the original sale contract. I hope the smokers appeal.

    And as Andrew Jackson once said- the court has made their ruling; let’s see them enforce it.




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  19. Zelsdorf Ragshaft III says:

    I wonder how the laws there are concerning the accidental discharge of a firearm, through the walls, floor or ceiling into the residence of those who report smokers who have had there right to privacy abridged by some incompetent judge.




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  20. ronald says:

    Anyone who refers to the smell of cigarette smoke as a “stench”
    is a troublemaking fanatic who should be slapped and ignored. It’s one of a thousand smells and better than most.




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  21. Laura says:

    As a non-smoker, I am happy to see a judge show some common sense! Why should a smokers right supersede mine? Why should I get cancer and have to put up with the noxious smell of cancer sticks, smells that permeate my curtains, rugs, bedding, ect? toilet smells and cooking smells dissipate after a while, Cigg. smoke does not!




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