Clearing the Air on Smoking in a Condo

Q: We own and live in a small condominium in the District. The tenant who lives below us smokes, and the smoke is entering our unit. We plan to have a baby soon and do not want the smoke to create health problems for us. What can we do?

A: If you live in Colorado, your association could prohibit smoking in the entire building, including inside individual units.

In November, Jefferson County District Court Judge Lily W. Oeffler upheld an amendment to a condo declaration doing just that. Colleen Christiansen and her husband, Roger Sauve, both smokers, owned a home in a four-unit condominium building near Denver. Two other unit owners (or their tenants) did not smoke; the fourth owner smoked, but only outside the building.

The other three owners tried to persuade Christiansen and Sauve to smoke only outside, but they were consistently rebuffed. The other owners also tried a number of methods to curtail the smoke, such as installing filters in the air ducts, but without success.

Finally, the association amended its declaration (one of the legal documents that creates a condominium) with the following language: "Smoking shall mean and include the inhaling, exhaling, burning or carrying of any lighted cigarette, cigar or other tobacco product, marijuana or illegal substance. No Owner, Guest, family member, tenant, resident, business invitee or visitor shall smoke cigarettes . . . within the boundaries of the Project. This prohibition shall include all Unit interiors, Common Elements And Limited Common Elements in the Project."

A 75 percent majority was required to pass the amendment, and three of the four owners voted in favor. Christiansen and Sauve filed suit, claiming that the association had no legal right to interfere with what is done within the unit itself.

Oeffler disagreed. After a two-day trial, she affirmed the validity of the amendment. She considered three factors:

Was the amendment reasonable? The judge thought so. She relied on a general rule of community associations: Anyone who buys a unit accepts the risk that the power of the unit owners to change the rules may be used in a way that benefits the community but harms the individual.

In other words, if you own property in a community association, you are bound not only by the existing rules and regulations but also by any new procedure that is legitimately enacted by the required majority of the owners. In this case, the amendment required a supermajority of 75 percent, and three of the four units' owners voted for the smoking prohibition.

The court ducked the issue of whether secondhand smoke is a health hazard. Instead, the judge looked to the legal documents and discovered that they included a prohibition against nuisance. The judge found the following language in the declaration significant: "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."

Based on the testimony of the three owners, the judge said that "the issue of whether there was actual smoke or simply a smoke smell is irrelevant. . . . Clearly, the smoke smell constitutes a nuisance under these circumstances."

Was the amendment made in good faith and not arbitrary and capricious? The court relied on the testimony that thousands of dollars were spent trying to alleviate the problem, without success, and that the three other owners tried unsuccessfully to reach a consensus with the smokers. Finally, as a last resort, the amendment was proposed and validly adopted.